Clarke v. Waite

12 Mass. 438

Opinion

Putnam, J.

The question in this case is, whether the declarations of a grantor, made before and after his deed, are to be admitted as evidence against the grantee, he not having been present, to prove the deed fraudulent, the grantor being dead. If such evidence ii admissible, the defendant ought to have a new trial on account of its rejection ; otherwise, the verdict is to stand.

It has been contended for the defendant, on the authority of Hill vs. Payson,

Footnotes

•

(1) that the grantor, if living, would be a legal witness. In that case the grantee was admitted ; the Court observing, that the common law principle had not been carried farther than to exclude a witness from testifying, to invalidate a security to which he had given credit by his signature. This rule has since been restrained to negotiable paper.(2)

In the other case cited and relied upon by the defendant,(3) the question to be tried was, when W. F. was born. To prove that fact, the entry of the physician who attended at the birth was admitted ; it appearing that he was dead, and that the charge was marked as paid. In such case the physician would have been a competent witness.

But the case of Bartlet vs. Delprat,(4) cited in the argument, is decisive in this action. There the Court determined that the declarations of a supposed grantor are not to be received after his death, as evidence against the party claiming under the deed.

If a grantor, after having received a consideration for bis land, could be permitted to defeat his own grant, so that his creditor might levy on the same estate, he would reap the fruits of his [*441] own iniquity, and might do great injustice to an * innocent grantee. Upon the reason of the thing, as well as on authority, we are all of opinion that the evidence in the case at bar was properly rejected.† Judgment according to the verdict.

3 Mass. Rep. 560.

•

Churchill vs. Suter, 4 Mass. Rep. 156.

•

Hingham vs. Ridgway, 10 East, 122.

•

4 Mass, Rep. 707.

•

Bridge vs. Eggleston, 14 Mass. Rep. 245. — Phillips vs. Earner, 2 Esp. 357.— Penn vs. Scholey, 5 Esp. 243. — Jackson vs. Sherman, 6 Johns 19. — Jackson vs. Bond, 4 Johns. 230. — Jackson vs. Donald, 10 Johns. 377. — Phenix vs. Ingraham, 5 Johns. 412, — Frear vs. Everton, 20 Johns. 142. — Dorsey vs. Dorsey’s Heirs, 3 H. & J. 426. — Arnold vs. Bell, 1 Hayw. 397. — Denn vs Mountjoy, 2 Hals 173. — Hurd vs. West, 7 Cowen, 752 — Austin vs. Sawyer, 9 Cowen, 39.