Stark v. Boswell — 6 Hill & Den. 405

Majority

p. 405

Stark vs. Boswell.

Headnote

Declarations made by the owner of a chose in action are not admissible to affect the rights of one subsequently deriving title from him.

This rule applies to declarations made by a mortgagee of lands, before the mortgage is due, when offered in evidence to affect the rights of a purchaser under it, though the mortgagee be dead at the time of the trial.

Ejectment, tried' at the Monroe circuit in December, 1842, before Dayton, C. Judge. The plaintiff proved that he acquired title to the premises in 1835, and that the defendant was in possession when this suit was commenced. The defendant set up title in himself, derived under a mortgage executed by the plaintiff to one Chittenden, bearing date in 1836. Chittenden having died in 1839, the mortgage was foreclosed under the statute by his executors, who became the purchasers at the sale, and after-wards conveyed to the defendant. The plaintiff offered to prove, by the declarations of Chittenden made in 1838, before the

p. 406

mortgage became due, that it was usurious, and to follow this by evidence that the defendant was notified of the fact before he purchased. The circuit judge held that the declarations of Chittenden were inadmissible, and the evidence was rejected; whereupon the plaintiff excepted. A verdict was rendered for the defendant, and the plaintiff now moved for a new trial on a bill of exceptions.

H. Gay, for the plaintiff.

S. Matthews, for the defendant.

It has been held several times by this court that declarations made by the owner of a chose in action, are not admissible to affect the rights of one deriving title from him. (Kent v. Walton, 7 Wend. 256 ; Whitaker v. Brown, 8 id. 490; Beach v. Wise, 1 Hill, 612 .)^[1] The mortgage in question was a mere chose in action, and there is nothing to take this case out of the above rule. The fact of the mortgagee having died before the trial, makes no difference. (Beach v. Wise, supra.) His declarations were properly rejected, and the motion for a new trial must therefore be denied.

New trial denied.

(a) (a) ®) The doctrine of these cases was directly sanctioned by the court for the correction of errors in Paige v. Gagwin. decided at the last December term.

Cases cited

Kent v. Walton 7 Wend. 256 N.Y. Sup. Ct. p. 406