Kitchell v. Hodgen

97 P. 369, 78 Kan. 551, 1908 Kan. LEXIS 101

• Court: Supreme Court of Kansas
• Decided: July 3, 1908
• Docket: No. 15,645
• Status: Published

Opinion

The opinion of the court was delivered by

Burch, J.:

The only meritorious question presented is whether the declarations of Blackwelder in disparagement of his right, while he still claimed an interest in the property in controversy, were admissible against his assignee. The plaintiff in error makes all the arguments for the exclusion of ordinary hearsay testimony. They do not apply to admissions of this character. The cases are cited which reject such evidence. The weight of reason and of authority is in favor of its admission. The history of the development of the rule and all the vicissitudes, confusions and qualifications surmounted in its final recognition and statement, together with illustrative cases, are set forth in volume 2 of Wigmore on Evidence, sections 1080 et seq., and 1458 et seq., and volume 3 of the same work, section 1780. The subject .need not be gone over again here.

It is claimed that limitations have been placed upon the rule by expressions used in previous decisions of this court. A careful reading of the opinions in the cases cited shows that nothing of the kind was intended or resulted. Thus, in Scheble v. Jordan, 30 Kan. 353, 1 Pac. 121, the excluded declaration was made after transfer of title. In Osborne v. Osborne, 33 Kan. 257, 6 Pac. 271, the statements were not against the interest of the party making them. In Crawford v. Crawford, 60 Kan. 126, 55 Pac. 842, the statements were not against interest, and were mainly mere narrations of ■past occurrences.

In Sumner v. Cook, 12 Kan. 162, the syllabus reads:

“To make a declaration of one from whom a party obtains title to property admissible in evidence against the latter, it must have been made during the time the .Interest in the property was vested in the person making the declaration.”

Whenever possession is an issue the statements of a ■predecessor in title limiting or qualifying his possession can not be used in evidence against one who claims to succeed him in right, unless made while possession ■continued in the party making the statements; but generally declarations against his interest, made by the vendor of real or personal property while by hypothesis title was vested in him, are admissible in evidence against his vendee.

A cause of action was stated against all defendants. The pleadings were broad enough to admit the evidence offered. It rested with Kitchell to plead and prove that he purchased without notice, if he desired to rely upon that defense. Beyond this the court need not inquire into the ultimate rights of the parties.

Other matters argued are unsubstantial. The order «of the district court granting a new trial is affirmed.