Creighton v. Hoppis , 99 Ind. 369 ( 1884 )

Elliott, C. J. —

In February, 1870, Wesley Creighton ;and his wife executed to the appellant a deed for a tract of land. Since the execution of that instrument Wesley Creighton has died, and his widow has married Solomon Hoppis, her co-appellee. The instrument is in form and terms an absolute deed of conveyance, and the appellant asserts title under it as such. The appellees contest the right of the appellant to possession, upon the ground that although the deed is absolute on its face, yet it was, in fact, nothing more than a mortgage.

The grantors remained in possession of the land, and Wesley Creighton during his life made improvements upon it. The appellees had a right to prove that permanent improvements were made by the deceased, because the act of improving supplied some ground for inferring that he was in possession as owner, and was not there at the sufferance of the person to whom he had executed a deed;'' The bare possession was of itself some evidence of ownership, and this evidence was strengthened by proof of the making of permanent improvements. The act of improving was one proper to be proved.

Possession by the person who has executed an instrument, purporting on its face to be an absolute conveyance of land, is in its nature equivocal, for it may be that he was in possession as tenant, or as a mortgagor, or by the mere sufferance of the grantee. As the possession may be equivocal, it becomes material to show its true character, and, in order to show this, what was done by the person in possession may be proved. The character of the possession may be determined in part from the acts of the person in possession. Of course, a grantor can not defeat his conveyance by mere evidence that he made improvements, but for the purpose of assisting in determining the true character of the conveyance and possession, it is competent to prove acts evidencing ownership. Acts of ownership performed without the knowledge of the grantee in a conveyance will not defeat his rights. They may, however, be properly given in evidence for the purpose of enabling the jury to ascertain the character of such rights.

We assume, on the strength of what has been said, that the acts of Wesley Creighton, done while in possession, were competent for the purpose of aiding the jury in determining the nature of the possession and the'character of the conveyance.

It is the general rule that where an act is competent, so also are the declarations accompanying the act. It was said by Professor Greenleaf: “ But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae; leaving its effect to be governed by other rules of evidence.” 1 Greenl. Ev. (14th ed.), section 109. In a note to the text it is said: “ Such declarations are now generally admitted.” In Sheaffer v. Eakman, 56 Pa. St. 144, it was said: “The character of a possession may always be shown by contemporaneous declarations of the tenant.” A like ruling was made in Jackson v. Bredenhergh, 1 Johns. 159, where it was said : “ But for another purpose, the declarations of Mrs. Punderson were clearly evidence, namely, to show in what character, or with what intent, she entered, and held possession of the premises in dispute.” After quoting from 1 Coke’s Institutes, 374, a, the Supreme Court of Connecticut said: “This ancient rule of the law necessarily implies, that the acts and declarations of the occupant are good evidence, to demonstrate the character and intent of the possession.” Williams v. Ensign, 4 Conn. 456. Of a like import was the language of the court in Thomas v. Wheeler, 47 Mo. 363, where it was said: “ The declarations or admissions of one in possession of property, explanatory of his possession — as that he holds it in his own right, or as a tenant or trustee of another — are admissible evidence because they explain the character of his possession. Darrett v. Donnelly, 38 Mo. 492, and cases cited. The declarations here made, cotemporaneous with the possession and while it continued, were also admissible as part of the res gestee. Boyden v. Moore, 11 Pick. 363.”

The question of the competency- of evidence of declarations, made by one in possession at the time of doing an act on the land, was carefully discussed in Downs v. Lyman, 3 N. H. 486, and the court thus expressed the rule: “ The rule of law is, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person, who did the act, proof of what the person said, at the time of doing it, is admissible in evidence, for the purpose of showing its true character.” In Turpin v. Brannon, 3 McCord, 160, it was said: “ But the declarations of a party when accompanied by an act may be received as explanatory of that act, as constituting a part of the res gestee.” In the following cases like statements of the rule will be found: Kirkland v. Trott, 66 Ala. 417; Sears v. Hayt, 37 Conn. 406; Stephens v. Williams, 46 Iowa, 540; Amick v. Young, 69 Ill. 542; Sheaffer v. Eakman, 56 Pa. St. 144; Hunnicutt v. Peyton, 102 U. S. 333; Abeel v. VanGelder, 36 N. Y. 513; Swettenham v. Leary, 18 Hun, 284. Our own cases recognize and enforce the rule. Lane v. State, 16 Ind. 14; Boone County Bank v. Wallace, 18 Ind. 82; McConnell v. Hannah, 96 Ind. 102.

In the cases cited by the appellant the evidence consisted of naked declarations unaccompanied by any act, and in such cases a very different rule obtains. We do not hold, nor mean to hold, that declarations unaccompanied by an act are admissible; on the contrary, we understand the rule to be against their admissibility. Nor do we hold that declarations accompanying an act are competent, where the act itself can not be proved, but we do hold that where the act is competent, so also are the declarations made at the time it was performed. Even in such cases, it is only declarations explanatory of the act and immediately connected with it that are admissible.

Narratives of a past transaction, although given at the time an act is done, are not competent. In order that the declarations may be competent, it must appear that they relate to the thing then done, and that they have a direct connection with it.

It is not necessary that the declarations should be made while the claimant is actually on the land; it is sufficient to establish their competency, if it appears that they were made ■ in connection with some act relating to the character of the possession. This is expressly ruled in the cases of Abeel v. VanGelder, supra, Swettenham v. Leary, 18 Hun, 284, Smith v. McNamara, 4 Lans. (N. Y.) 169. In the case before us the declarations objected to most earnestly were made while Wesley Creighton was at a neighboring town, but while he was still in possession of the land, and negotiating for building a house on it, and were, under the rule laid down in the cases cited, clearly admissible.

Declarations made by Wesley Creighton when he applied for a policy of insurance were admitted in evidence, and we think.there was no error in this ruling, for it appears that he was in possession of the land at the time, that the declarations concerned the property and were explanatory of the possession.

Filed Sept. 27, 1884.

It is not for the court to determine the weight of evidence, for, if the evidence is at all material, it must be admitted if it is otherwise competent. Nave v. Flack, 90 Ind. 205 (46 Am. R. 205). The weight to be attached to declarations such as those given in evidence in the present instance was a question for the jury or the court trying the case. Of themselves, they are not sufficient to overthrow a deed, or transform an absolute conveyance into a mortgage, but are proper evidence to be considered in connection with other facts and circumstances.

The action was prosecuted against the heirs of a deceased person, and the plaintiff was not a competent witness as to matters which occurred prior to the death of the ancestor.

Where the husband is not a competent witness, the wife is not. R. S. 1881, section 501.

There was evidence fairly tending to support the verdict, and that requires us to decline to disturb it. Affirmed.