Nutter v. Tucker

30 A. 352, 67 N.H. 185

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1892
• Status: Published

Opinion

Smith, J.

The declaration of Emery as to the location of his southerly line was not rendered inadmissible by the fact that it 'was a statement such as his interest might induce him to make. The reasons for a contrary holding (Shepherd v. Thompson, 4 N. H. 213, Smith v. Powers, 15 N. H. 546, 563, Morrill v. Foster, 33 N. H. 379, 386) have been removed by the statutory changes in the law of evidence, by which parties and persons interested are no longer excluded as witnesses. The objection of interest is held to go to the weight of the evidence merely, and not to its competency. Lawrence v. Tennant, 64 N. H. 532, 541. Nor does the fact that the predecessors in title of both parties occupied the disputed tract prior to March, 1871, render the evidence inadmissible. The declarations of a former deceased owner of land, made while in possession, are competent upon the question of its boundaries in favor of as well as against one claiming under him. South Hampton v. Fowler, 54 N. H. 197, 200; Wood v. Fiske, 62 N. H. 173. Either party may put in the declarations of a deceased former owner on the question of boundaries, but on the question of the weight of the evidence it is much stronger for the party who, puts them in when they are agaipst the interest of the person who made them. “ The true rule admits this traditionary evidence, not as a mere disclaimer or disparagement of title, but on the broader ground of the nature and necessity of a class of cases in which great difficulty in proving original landmarks is likely to arise from lapse of time.” Lawrence v. Tennant, ubi supra 541.

Exception overruled.

Carpenter, .E, dissented: Chase, J., did not sit: the others concurred.