
    [Sunbury,
    June 20, 1827.]
    BENNETT against HETHINGTON and others.
    IN ERROR.
    The declarations of a party at the time of making a settlement are evidence of the intent with which he entered on the land.
    A tenant in common is a competent witness for his co-tenant, in an ejectment brought by the latter.
    On a writ of error to Lycoming county, it appeared that George Bennett, the plaintiff in this ejectment, claimed an undivided third part of two hundred and forty acres of land in Nippernose township, the premises in dispute, under an improvement alleged to have been made by John Huff, in 1795, and conveyed by him by articles of agreement, in 1797, to George Bennett, who remained in possession until a judgment by default was obtained against him, when he was dispossessed.
    After having examined a witness as to the alleged improvement, the plaintiff proposed to prove by him the declarations of Huff, at the time of settling, “ That he was settling on the land in dispute, as vacant land, and to take it up by improvement;” and to follow up this evidence by proof that the plaintiff claimed under Huff.
    
    The defendants’ counsel objected to the evidence, which the court rejected; and at the l’equest of the plaintiff’s counsel, sealed a bill of exceptions.
    The defendants, David Hethington, Robert Carson, David Crawford, and William Benjamin, claimed under a warrant, to Philip Penn, of the 22d of September, 1794, and a survey purporting to have been made the 28th of September, 1794, and returned into office on the 23d of March, 1795; and a deed poll from Philip Penn to William Benjamin, dated the 15th of April, 1796, and acknowledged the 3d of February, 1809.
    The plaintiff alleged that the defendants’ survey was not actually made on the ground at the time it purported to have been made; but that Benjamin got the return accepted among a bundle of others which were made by a deputy of Joseph Wallis, the deputy surveyor, and that he afterwards went on the ground and made the survey. To establish these facts, the plaintiff called witnesses; and among other testimony offered the deposition of James Bennett, to prove the settlement of John Huff previously to the survey. At the time this deposition was taken, James Bennett also claimed an undivided third part of the above mentioned two hundred and forty acres. The evidence being objected to, the court rejected it on the ground that the witness was tenant in common with the plaintiff, and therefore incompetent. This decision formed the subject of a second bill of exceptions, which the court sealed at the request of the plaintiff’s counsel.
    
      Anthony and Bellers, for the plaintiff in error.
    The declarations of Huff at the time of making the settlement, were evidence to show quo animo it was made. They were part of the res gestae accompanied by the acts previously proved: “ a manifest intention of making it a place of abode,” agreeably to the act of assembly. These declarations repelled the supposition that Huff was not settling in his own right. The law on this point is perfectly clear. Phill. Ev. 202. 1 Johns. Rep. 159, 163, 164. Wright v. Small, 4 Yeates, 562.
    2. James Bennett, having been, when his deposition was taken, a claimant of one third of the tract as well as the plaintiff, did not disqualify him as a witness. Two persons out of possession cannot be tenants in common. If one recovers his undivided part in ejectment, he is not tenant in common with his former partner, but with the person who has the possession, and against whom he recovers, and partition may be made between them. The titles of tenants in common are distinct, and a recovery by one does not enure to the benefit of the other. They cannot recover in ejectment on a joint demise. Runnington on Ejectments, 222. The objection therefore goes to the credit, and not to the competency of the witness. He is interested only in the question involved, not in the result of the suit; and, unless he is to gain or lose by the event of the cause, or the verdict could be used for or against him, it is now perfectly settled that the witness is competent. 3 Johns. Ch. 82. Lessee of Cox v. Ewing, 4 Yeates, 429. If joint trespassers are sued in separate actions, they may be witnesses for each other. 1 Wash. Rep. 187. Wakely v. Hart, 6 Binn. 316. One of several lessors in ejectment may have his name struck out by leave of the court, and be a witness. 4 Johns. 143. 1 Bl. Com. 194. Co. Litt. 198. n. b. The case of Vanswearingen v. Ross, 7 Serg. & Rawle, 192, goes very far to decide this question.
    
      Campbell, for the defendants in error,
    admitted that in general the declarations of a settler were evidence of the quo animo, he made the settlement. But in the present case, all the acts of Huff showed the quo animo. There was no question as to that; and therefore the declarations were improperly admitted,
    2. James Bennett was tenant in common with the plaintiff, and had an interest in promoting his recovery. The slightest interest is sufficient, and renders one incompetent as a witness. It is sufficient, if the evidence of the person offered tends to increase a fund in which he is interested. 1 Phill. Ev. 51, 52, 53. 10 Serg. & Rawle, 269 — 274. 5 Johns. Rep. 427, 458. 2 Dall. 50. 1 Mass. R. 239.
    Tenants in common have unity of possession. No one knows his own severalty, but the possession is undivided and promiscuous. If, therefore, the plaintiff recovers, his co-tenant will be in possession with him of the part recovered. It follows that tenants in common cannot be witnesses for each other. 2 Bl. Com. 194, 197. Co. Litt. 292, 200. 3 Bac. Ab. (Wills. Ed.) 688. 10 Serg. & Rawle, 187. 11 Johns. 461. 15 Johns. 501. 3 Bac. Ab. 709. 3 Wills. 1118.
    The case was argued on the 3d of July, 1826, and held under advisement until the present time, when Gibson, C. J., delivered the following opinion.
   Gibson, C. J.

It has never before been doubted that the declarations of a party, at the time, are evidence of the intent with which he entered; and, this is all that is necessary to be said in respect of the first point.

The question, whether a tenant in common be a competent witness for his co-tenant, in an ejectment by the latter, has not been decided in terms; but, a principle broad enough .to cover the particular case, has been established by many decisions. The beginning of this principle, is an epoch in the law; previous to which, questions of competency depending on interest, were decided on subtle and arbitrary distinctions, that are now considered a reproach to the profession; and, in returning to them, we should recede from what is universally considered an improvement. Nothing can be plainer or of more ready application, than the distinction between interest in the question, and interest in the event of the suit. Although the case of the witness be, in every point and particular, the case of the party by whom he is called to testify; although he expect a benefit from the event; and, in short, although he be subject to as strong a bias as can influence the understanding and actions of man; yet, if he be not implicated in the legal consequences of the judgment, he is competent By legal consequences are meant those that are fixed, certain and actual, and by which an advantage not depending on a contingency, is to be gained or lost: such, for instance, as being entitled to give the verdict in evidence in another suit, on the one hand, or being subjected to an incumbrance or duty on the other. This is what I understand to be the modern rule, as established in this country for its intrinsic excellence and good sense. Whether the case before us falls within it, will depend on the consequences of tenure in common as regards joinder in action. In personal actions, though concerning the realty, the interests of tenants in common are inseparable, and they must join. So, in real actions for an entire thing. But, in real actions to recover the seisin oe land, they shall not join, because their estates are several; and therefore, as each must recover according to the nature of his own estate, to suffer them to join, would subject the jury to the perplexity of trying two or more titles in the same issue. That this does not hold in ejectment also, is attributable to the fiction, by which the estates of all the plaintiffs are supposed to be united in the person of the lessee who is the plaintiff of record, and, in contemplation of law, the party in interest. And here, we remark another consequence of the severalty of their estates — they cannot like joint tenants, who are seised per my et per tout, join in a general demise of the whole, but each is to demise for himself. But so little does it accord with the policy of the law to compel them to join in ejectment, that their being suffered to do so, is a consequence neither foreseen nor intended by those who contrived the machinery of the action. Here, the plaintiff has elected to sue alone, and what would the witness gain by his recovery? The possession of his own freehold would not be restored; but for that, he would be driven to a separate action, in which the verdict in this, would not be competent evidence. Neither would the possession of his co-tenant when recovered, avail him to save the bar of the statute of limitation; for he who recovers an undivided interest in a several action, holds in common with him from whom it is recovered, the latter continuing to hold the estates of those who remain ousted. The entry of one tenant in common, is the entry of both, only where he does not enter specially for himself; but, in this respect, there is a strong analogy between a special entry, and a separate action in which the plaintiff must necessarily recover the possession for himself. Nor before a recovery by both, can the possession of the one be the possession of the other; an actual occupancy by wrong, being indisputably adverse to him who has the right. I admit that a tenant in common is not competent to support the possession of his co-tenant where the latter is defendant in an ejectment, founded on a title adverse to the title of both. But this discrepance between a case where the co-tenant is plaintiff, and one where he is defendant becomes the less striking as we reflect, how frequently questions of this sort depend on the situation of the parties. A more imposing difficulty is the reciprocity that exists among parties who can produce by the evidence of each other in successive actions, substantially the result of a joint recovery by all. But this reciprocity is more apparent than real; the supposed quid pro quo, not being a debt or duty, but a gratuity in kind. Such as it is, however, it must be borne with as an evil inseparable from our nature, and one which necessarily exists in a greater or less degree in all cases, and under every modification of circumstances. A party and his witness may drive a bargain in any case, whether the perjury is to be repaid in kind or requited with money; yet that they happen to be placed in circumstances which constitute a strong temptation to make common cause in prosecuting their claims, or eluding their liabilities, affords no objection to their competency. Such considerations are held not to disqualify a witness who has signed the same policy; or who is separately sued for the same trespass; or separately indicted of perjury, in swearing to the same fact; or a seaman who has served aboard the same vessel, in an action for seamen’s wages: yet, in all these instances which are put by Mr. Phillips by way of illustration, the party and the witness are from identity of situation, exposed to the same temptation that may warp the testimony of tenants in common, who have separate actions depending for their respective freeholds. I therefore, perceive no sufficient reason for the rejection of the witness.

Duncan, J., and Rogers, J., concurred.

Huston, J., dissented.

Tod, J., was not present at the argument, and took no part in thejudgment.

Judgment reversed and a venire facias de novo awarded.  