
    Jedediah Marcy vs. Simon Stone.
    The declarations of one occupying land, that he occupies it as tenant of another person, are admissible in evidence, as part of the res gestee, to prove such other’s possession, in an action brought against him by a third person claiming title to the land.
    In an action of trespass quare clausum fregit, brought against one claiming to hold the premises under a lost deed from the plaintiff, a witness, who has testified to a conversation, at which the plaintiff was asked, “ whether he had received pay for the land,’’ and answered in the affirmative, cannot be asked by the defendant what land he understood the conversation to refer to.
    In an action of trespass quare clausum fregit, the defendant, claiming title by adverse possession, put in evidence a will containing a devise by the testatrix to certain of her grandchildren, under whom he claimed'; and the plaintiff gave evidence of subsequent declarations of the testatrix, that she did not cwn the land when she made the will, and did not intend to buy it, unless certain arrangements could be carried out, because it would be giving the devisees more than her other grandchildren. It was held, that the plaintiff might then put in evidence the final account and the decree of the probate court on the settlement of the estate of the testatrix, to show what the shares of the other grandchildren would be, compared with those of the devisees, if they held this estate.
    This was an action of trespass quare clausum fregit, commenced on the 1st of November, 1849, and tried in the court of common pleas, before Hoar, J., who signed the following bill of exceptions : —
    This action was brought against the defendant, for cutting grass upon an acre of land, alleged by the plaintiff to be his close. The defendant pleaded the general issue, and specified in defence, that he entered under certain persons named, who were the children of Abigail Marcy, the widow of Joseph Marcy.
    The plaintiff produced evidence that the estate was part of a large estate, formerly belonging to Jedediah Marcy, who by his last will devised the use of an undivided third part of it to his wife, and the remainder to his children, of whom the plaintiff was one. His widow afterwards married Healy; and died in April, 1848. And the plaintiff produced deeds to himself, from the devisees and heirs of the testator, of all the estate, except a small parcel not claimed by those under whom the defendant entered. The plaintiff also produced evidence of acts of entry and ownership by him after the death of his mother, and before the commencement of this action.
    The defendant stated that his grounds of defence were as follows: 1st. That previous to 1826, the plaintiff sold the premises to his mother, and that she occupied the same after-wards until her death; 2d. That she had an adverse exclusive possession of the premises, from 1826 until her death, occupying them by permitting her son Joseph, to dwell upon and improve the same until his death, in August, 1847; and that she by her last will devised the same to Joseph Marcy’s children, under whom the defendant entered.
    The defendant, to prove his case, called one Ammidown, and after having proved by him that the mother built a house upon the premises, in 1826, which was subsequently occupied by Joseph and his family, asked the witness what he had heard Joseph (who was dead) say, upon the land, as to how he occupied the land. To this the plaintiff objected, inasmuch as the defendant did not claim to hold the land under or through Joseph; but the judge permitted the question to be put and answered, for the purpose of showing that the occupation of Joseph was not adverse to, but under, and as the tenant of, his mother.
    The defendant, to show that the plaintiff had been paid for the piece of land in controversy, put into the case the deposition of Eliza Lyon; in which, being asked in the first interrogatory put by the defendant’s counsel, whether since the decease of Mrs. Healy, she had heard any conversation between Salem Copeland and the plaintiff, in relation to the claim of Mr-s. Abigail Marcy of her dower in the real estate of her husband, Joseph Marcy, and the claim of the plaintiff to the estate on which Mrs. Abigail Marcy then lived; and if so, to state the whole conversation on those subjects; the witness testified, that she did hear a conversation between Copeland and the plaintiff, at the house of Mrs. Abigail Marcy, about the 3d of May, 1848, that she heard Copeland ask the plaintiff if he had received pay for the land, and he replied that he had, and then stated the sum, which the witness did not recollect; and that this was all the conversation which she recollected with such certainty, as to be willing to swear to it. She was then asked: “ What land did you understand from the conversation of the parties was spoken of, as stated in your previous answer?” To this question the plaintiff objected. The deponent answered: “ I understood them to refer to the land which was then occupied by Mrs. Abigail Marcy.” On cross-examination by the plaintiff’s counsel, she testified, that she understood at the time of the conversation, that it related to the land as testified above, and did not receive this impression from circumstances which had since occurred; that the conversation, as testified to in her first answer, Was all that led her to the impression, that it related to the land in question; that there was other conversation about the land, which she did not particularly recollect; and that she did not recollect that any part of the conversation related to Mrs. Abigail Marcy’s right of dower; or that the plaintiff told Copeland that he claimed the land. The plaintiff objected to the second interrogatory put by the defendant, but the judge overruled the objection.
    The defendant put in evidence the will of Mrs. Healy, the widow of Jedediah Marcy, and mother of the plaintiff, dated in 1842. After the evidence of the defendant had been closed, the plaintiff called a witness, who testified, that Mrs. Healy in 1844, declared that she was not then the owner of the estate, and had never had a deed of the same from the plaintiff, and that she should not buy it, unless Joseph and his wife would consummate the settlement as to the dower of Joseph’s wife in her husband’s estate, which they promised to do when she began to build the house; and gave as a reason for not buying the estate, that it would be giving these grandchildren four times as much as her other grandchildren; and that in 1847, after the death of Joseph Marcy, she stated that she did not make the arrangement, that she did not mean to call on her son Jedediah for a deed, and meant to alter her will when her son William came down from New York.
    The same witness testified to acts done on the premises by the plaintiff in 1830 and 1831, such as feeding his sheep and oxen upon them; and that the acre in controversy was not, in those years, fenced from other land of the plaintiff.
    The plaintiff proved the number of Joseph’s children, and of Mrs. Healy’s other grandchildren; and offered in evidence the final account, and the decree of the judge of probate upon the settlement of her estate, in order to show what the shares of the other grandchildren would be, compared with those of Joseph’s children if they held this estate. But this evidence was ruled to be incompetent.
    The jury returned a verdict for the defendant, and the plaintiff excepted to the foregoing rulings of the presiding judge.
    
      E. Washburn, for the plaintiff,
    cited, to the point that evidence of the declarations of Joseph should not have been admitted, 1 Greenl. Ev. § 109; Outram v. Morewood, 5 T. R. 121; West Cambridge v. Lexington, 2 Pick. 536; Daggett v. Shaw, 5 Met. 223, 226; Doe v. Payne, 1 Stark. R. 86; Van Deusen v. Turner, 12 Pick. 532; Allen v. Holton, 20 Pick. 458; Rankin v. Tenbrook, 5 Watts, 386; Crane v. Marshall, 4 Shep. 27; Alden v. Gilmore, 1 Shep. 178; and to the point, that the question put to Lyon, as to what she understood by the conversation, was incompetent, Rider v. Ocean Ins. Co. 20 Pick. 259, 262; Campbell v. Rickards, 5 B. & Ad. 840; 1 Greenl. Ev. §§ 295, 440.
    R. Newton and I. Mason, for the defendant.
    The opinion was delivered at the October term 1852.
   Shaw, C. J.

The bill of exceptions in this case is unsatisfactory, because it leaves in doubt several facts, which seem material to the case.

We understand that the premises, on which the trespass Is assigned, were about an acre of land, part of a larger estate, formerly belonging to Jedediah Marcy, deceased; and that Jedediah, the elder, devised one undivided third of the estate to Abigail his wife, and the residue to his children. The one third to the wife is not stated, in terms, to be for life; but it is said “ the use of an undivided third part,” and no words of limitation; and therefore we assume, that the one third to Abigail was for her life. It is stated, that the plaintiff proved title in himself, by deeds from all the other heirs and devisees, except Abigail the widow, to all the devised estate, except a small parcel, not claimed by the defendant, and not now in controversy. He then obtained title, to the estate in controversy, as part of the whole, subject to the estate of his mother, whether for life or in fee. It does not appear that any partition was ever made.

Of course, Jedediah the plaintiff was tenant in common with his mother of the entire estate, including the acre in question, during her life; whether she was devisee for life, or in fee.

The bill of exceptions then states that the defence opened was, that the plaintiff sold the premises to his mother previous to 1826, and that she occupied the same till her decease. The sale being of an interest in real estate, by a settled rule of law no such sale and conveyance could be proved but by deed. It does not appear that the defendant professed to rely on a deed lost by time and accident; but it may be inferred, from the tenor of the evidence which was offered and relied on, that such was the nature of the defence. Such a lost deed can be proved only by a possession, adverse, exclusive, uninterrupted, and continued such a length of time, as to warrant a presumption that there must have been a conveyance, which time is now understood to be not less than twenty years, against a party not under a disability. If such is a true view of the facts, it seems difficult to perceive, what foundation the de • fendant laid for proof of a lost deed.

If Mrs. Marcy the widow, afterwards Mrs. Healy, was tenant in common with the plaintiff, as she was if there had been no partition, then her holding was consistent with her title, and her possession was not adverse. If, as there was evidence tending to prove, the plaintiff occupied part of the premises in 1830 and 1831, then that possession of the widow was not exclusive. If it became exclusive in 1830 or 1831, and terminated in 1848, it did not continue twenty years. But whatever the evidence was, tending to establish the presumption of a lost deed, it was parol evidence; and then her acts and declarations, tending to show that no such deed was ever given, were evidence tending to rebut the presumption, and therefore competent.

We are then to come to the particular exceptions stated in the bill. According to the view which the court take of the uncontested facts, the points on which the exceptions turn would not seem to be material; but, from the manner in which the cause went to the jury, they may have been, and probably were, quite material, and had a controlling influence in producing the verdict.

The first arises upon the testimony of Ammidown. The object was to show that the mother had built a house on this part of the estate, and was in possession of it, by the occupation of the same by her son Joseph and his family, with her permission. The fact that she built a house upon it, under the circumstances, does not go far to prove that she owned or believed she owned the estate in fee; because her husband’s children and grandchildren, entitled to the estate in remainder, expectant on the termination of her life estate, were her own heirs at law; and any improvements made in the estate, at her expense, would inure to their benefit, as if she had given them so much by will. But the particular exception to Ammidown’s testimony was this: He was asked what he had

heard Joseph say upon the land, as to how he occupied. This was objected to as hearsay. We are of opinion, that this question was admissible as res gesta. It is true that this was a declaration only, and consisted in words; but they were words qualifying his acts of possession and in disparagement of his own title, so far as that circumstance is of importance: Peaceable v. Watson, 4 Taunt. 16; and they tended to show that his occupation was not in his own right, but in right of his mother. 1 Greenl. Ev. § 109. This testimony falls under the remark already made, that the evidence would seem immaterial, because it could only tend to prove the mother’s possession. If that possession was not adverse, it did little to advance the defence.

2. The next exception arises from a question and answer in the deposition of Eliza Lyon. She was asked,—after a statement of a conversation, in which the plaintiff was asked if he had not received pay for the land, and he said he had,—what land she understood the conversation to refer to, and this was objected to, but admitted. From the form in which this question was put and allowed, after exception, and with her other testimony, the court are of opinion that it was not admissible. It was not limited to what the witness understood, from the conversation itself, all of which she stated; and for aught that appears, it was simply her own supposition, belief, or understanding, formed, indeed, at the time of the conversation, perhaps from other sources, but from no other part of the conversation, than that stated, which has no such reference.

3. It is further stated that the defendant gave in evidence the will of Mrs. Healy, formerly Mrs. Marcy, the widow of Jedediah, by which, as we infer, for it is not stated, she devised this estate in fee to her grandchildren, the children of Joseph, under whom the defendants claim. It does not appear whether she was a widow, or if so, widow a second time when this will was made. Taken in connection with proof of title in her from other sources,-this will might have been competent evidence, to prove the chain of title, under which the defendant claims. But, as evidence of title to any estate of inheritance in her, it seems difficult to perceive how it could be applied. But it does not appear, for what purpose it was admitted, or whether it was specifically objected to, or admitted with any limitation as to its application. Without deciding whether it was competent, for any purpose, we are of opinion, that if it was admitted as a declaration of hers, in assertion of some title in fee which she could devise, it should have been taken with all her declarations of her intent to alter her will, and her reasons for it, and this would have made the evidence offered by the. plaintiff, respecting the number of her children and grandchildren, relevant and competent. We are of opinion, therefore, that the rejection of this evidence, in the posture of the cause, and under the circumstances of the case, was incorrect.

The bill of exceptions is the less satisfactory, and perhaps less intelligible, because no statement is made of the view of the law, as taken by the court, and the instructions given to the jury. As they were not excepted to, we are of course to presume that they were correct; but it renders it more difficult to ascertain the precise grounds, on which evidence was admitted and rejected.

As the report stands, we think two of the exceptions were well taken, and therefore that the verdict must be set aside, and a new trial ordered. New trial in this court.  