Noyes v. Morrill , 108 Mass. 396 ( 1871 )

Colt, J.

This bill of exceptions is not precise in some of its statements of title.

The declarations of Watt in 1833 were not admissible to charge the plaintiff’s estate with an easement in favor of those under whom the defendant claims. There was no evidence that Watt was then the owner of the land or claimed any interest therein. At most, he was only in the occupation of the premises, and acquired title afterwards by the deed to him in 1835. The nature of his tenancy before that does not appear.

The declarations of a former owner are admissible to qualify or disparage his title to the exclusive use and occupation of the estate which he holds. If made while the title is in him, they are evidence against another who is privy in estate. They cannot affect any estate subsequently acquired by the person who makes them. It is the title derived by Watt in 1835, to which the plaintiff stands in privity, and that title is not to be thus qualified. Bartlett v. Emerson, 7 Gray, 174.

This exception to the general rule excluding hearsay cannot be availed of by the suggestion that the declarations offered tended to prove that the use of the way during Watt’s ownership was under a claim of right and not by his permission. The fact, if material, cannot be proved by hearsay, and does not come within the exception above stated. 1 Greenl. Ev. §§ 109, 189.

Those portions of the answers to certain interrogatories in the deposition of Ferguson, which were ruled out by the court, were objectionable as statements of the opinions of the witness upon facts not disclosed, or as an attempt to prove the ownership of real estate by incompetent evidence. They were properly excluded. Morrison v. Chapin, 97 Mass. 72.

Exceptions overruled