Comins v. Comins

Storrs, J.

As this case has been submitted to us without argument, and no brief has been presented on one side, we are not aware on what ground the plaintiff would vindicate the first claim made by him, on the trial, that, although the defendant, while he occupied the demanded premises, claimed title thereto in himself, yet, that, as he so occupied by virtue of a parol gift only from the owner, (who was his father and the plaintiff’s testator,) such possession was not adverse to the owner, but was to be deemed in law subordinate to his title. If indeed nothing had appeared in the case, excepting merely that the defendant had been in the possession of the land, his possession would be deemed constructively to have been in subordination to the legal title, and therefore under, and not adverse to, the true owner; but when to the fact of his possession is superadded the fact, that it was exercised by him under a claim of title in himself, the latter fact rebuts the presumption that he occupied under the owner, or any other person, and shews therefore, that the possession was adverse. Indeed, it is the claim of title with which a possession is accompanied, which shews that the pos *417 sessor occupied the land as his own, and not as tenant, or recognizing the title, of another; and for that reason such possession is adverse. There is frequently no little difficulty in determining as to what evidence is sufficient to prove such a claim; but we are not now called upon to consider that topic; because, in the present case, it is conceded, that it was established. It would have been sufficient, in this case, for the defendant to shew, that he was in possession of the premises for the period of fifteen years, under such claim of title, or as his own, without adducing any grant, or other colour of title under which he claimed to hold. The parol gift to him was void, under our statute of frauds, for the purpose of conveying a title, although it was evidence to shew the ground or claim under which he entered and occupied, and that he thus entered and occupied the land under it, as his own and claiming title to it in himself, as though the grant were valid; and such an entry and possession would preclude the idea that he held in subordination to, or recognizing the title of, the owner, or as his tenant. And we cannot perceive how an entry and possession, under a claim of title in himself, by virtue of a void grant, whether by parol or deed, is less adverse, than if taken and held without any colour of title whatever. There is the same possession under a claim of title, and the same entire destitution of a regular valid title, in both cases.

The question in Sumner v. Stearns, 6 Metc. 337 , was precisely like the present; and the views which were then taken by the court, are such as we have expressed. The charge below on this point, which was in accordance with them, was therefore unexceptionable.

The remaining point respects the correctness of the rule laid down to the jury, in the charge below, in regard to the declarations of Simon Comins, the father of the defendant, and the owner of the demanded premises.

The question between the parties was, whether the defendant had been in the adverse possession of the land. This involved two enquiries: first, whether the acts of the defendant on the land, were such as properly to constitute a possession by him; and secondly, if they were, whether such *418 possession was, in its character, adverse to the said owner. In order to rebut the evidence which has been adduced by the defendant, to shew the fact of such possession and that it was adverse, the plaintiff adduced in evidence the acts of his testator, (the owner,) in and about the premises, in reference to and connected with their management and care, with his declarations accompanying such acts, and also other declarations of the owner, while away from the premises, as to what he intended to do, or narrating what he had done, as, for instance, that he was going to repair the barn on the premises, or that he had permitted the defendant to occupy them without paying rent. Such acts, and the declarations accompanying them, were not objected to, by the defendant; and the jury were instructed, that they were admissible for the purpose for which they were introduced. This was plainly correct. Those acts were admissible, not only for the purpose of rebutting the claim of the defendant, that the owner did not retain the possession of the premises, but had been ousted therefrom; but, if the defendant succeeded, in shewing that he had acquired possession, for the further purpose of rebutting his claim that it was taken and held under a claim of title in himself, and not in subserviency to the title of the owner; and the declarations accompanying those acts, were admissible, on a principle too familiar to require authorities, for the purpose of explaining and shewing their true character. But as to the other declarations of the owner, made while he was absent from the premises, and which accompanied no act, but which were mere statements of what he had done, or intended to do, respecting the premises, the jury were instructed, that they were inadmissible for the purpose for which they were offered. To this part of the charge we see no objection. These were mere naked declarations, and were no part of a res gesta, because they accompanied no act, and therefore could not tend to explain or characterize any. It did not appear, nor was it claimed, that they were made in the hearing of the defendant, so that they could be construed into any admissions by him; indeed, they stood upon no higher ground than a bare statement, by any other person than the owner, as to what the latter intended to do, *419 or had done, and therefore come within the general objection to mere hearsay.

A new trial is not advised.

In this opinion the other judges concurred.

New trial denied.