I dissent. The majority has found that the statements of Mrs. Baxter are not declarations against interest and so they do not come within the exceptions to the hearsay rule contained in section 10531, Revised Codes. I believe they do come within subdivision 4 of that section, which provides that evidence may be given upon a trial of the following facts: "The act or declaration of a deceased person done or made against his interest in respect to his real property."
The majority says that the statement of Mrs. Baxter is not admissible since she had parted with title to the property at the time the statement was supposed to have been made; this upon the theory of the plaintiff that a transfer of the property had been made and that Mrs. Baxter had conveyed the property to the plaintiff. The defendants deny that any transfer had been made and it appears that the property in question was distributed as Mrs. Baxter's after her death. Further it appears that at the time Mrs. Baxter made the statement she was in possession of the real property as landlord.
I agree with the majority when it says that when a deceased declarant has parted with all title to the property at the time the declaration is made, the declaration is not against interest within the statute, but when the very question in dispute is as *Page 372 to whether decedent has parted with title, then the statement is admissible. This court has so held in Laundreville v. Mero,86 Mont. 43, 281 P. 749, 752, 69 A.L.R. 416. There the situation on this point was exactly the same as here. Defendant's theory, as here, was that the declarant was the owner of the property in question; the plaintiff's, that the declarant had deeded it to him. The court said: "Contention is also made that the evidence given by Frank Conley to the effect that decedent, after the making of the deeds, told him that he had deeded all his land away, and that the 40 acres in question belonged to Laundreville, was inadmissible as hearsay. This evidence was admissible by reason of subdivision 4, section 10531, Revised Codes 1921, which makes admissible `the act or declaration of a deceased person done or made against his interest in respect to his real property.' * * * Under defendants' theory of the case, the decedent, when he made the statement, was and at all times since until his death had been the owner of this 40 acre tract. The statement was admissible as some evidence tending to show the mistake here asserted and to show the real intent of the grantor. (McCabe v. O'Conner, supra [42 S.D. 506, 176 N.W. 43].)"
In overruling the decision in the Laundreville Case, the majority relies on Osnes Livestock Co. v. Warren, 103 Mont. 284,62 P.2d 206, 211. There this court, after stating the rule as found in Washoe Copper Co. v. Junila, 43 Mont. 178,115 P. 917, based its exclusion of the proffered declaration, not on any theory the declarant had no interest in the property at the time the statement was made, but said: "The declarations made by these predecessors at the time they were made were not against the then interest of the declarant. They were declarations made in the furtherance of the declarant's interest as it then existed," and therefore self-serving declarations which, of course, are always inadmissible.
The rule announced in the Laundreville Case is supported by the authorities in many states. (Lyon v. Ricker, 141 N.Y. 225,36 N.E. 189; Chew v. Jackson, 45 Tex. Civ. App. 656,102 S.W. 427; Scott v. Crouch, 24 Utah, 377, 67 P. 1068; GulfRed Cedar *Page 373 Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Wynn v. Cory,48 Mo. 346; and see 22 C.J. 234, and the many cases cited in the footnotes on that page.) It happens that in the LaundrevilleCase the statements were made by defendant's predecessor in interest, but the statements were held admissible, not as admissions against interest, but as declarations admissible under section 10531.
In all of these cases last above cited the situation was exactly the same as in this one. The fact of conveyance was sought to be proven by the declaration of the deceased grantor, and the court in each case held the evidence admissible under the exception to the hearsay rule found in our statutes as section 10531, as did this court in the Laundreville Case. Dick v.King, 80 Mont. 40, 257 P. 1022, has no application. There the fact of declarant's having parted with title was not in question. He had no interest in the real property and his statement could not be against interest.
It is stated by the majority that the declaration can only be used where the declarant was a party to the action or in privity with one of the parties. The majority does not seem to be able to distinguish between admissions against interest, admissible against a party whether the declarant is alive or dead, and a declaration of a deceased person contemplated by section 10531. That this is so is indicated by its reliance on sections 238 to 242 of Jones on Evidence, fourth edition. What is said by the author of that work in sections 238, 239, 240, 241 and 242, deals with admissions against interest where the declarant is alive as well as where he is dead. In section 323, where Jones does deal with this exception to the hearsay rule, he says: "Having considered elsewhere [referring to section 236 et seq.] the admissibility in evidence of admissions and declarations against interest by parties and those in privity with parties, we now turn to a related class of declarations against interest — that is, those made by a person who is neither a party to the suitnor in privity with a party and who has since died. As one of the exceptions to the general rule excluding hearsay, it has long been settled that the declarations of persons since deceased are admissible *Page 374 in evidence — provided that the declarant had peculiar means of knowing the matter stated, that he had no interest to misrepresent it, and that it was opposed to his pecuniary or proprietary interest."
A declaration against interest within section 10531, as indicated by Jones above, is admissible without regard to the parties involved. The reason for this is well stated in Lyon v.Ricker, supra: "The court receives declarations of a deceased person against his interest, because of the likelihood of their being true, of their general freedom from any reasonable probability of fraud, and because they cannot be set up or proven until the death of the party making them. We think it plain that the declarations of the deceased grantor were admissible against the defendant, although the latter claimed nothing under the grantor, and was not, therefore, strictly in privity with him."
The declarations within section 10531, which section is merely a statement of the common-law rule, are admissible, not to impeach or contradict a claim of a party to the suit by reason of the fact that the party or one in privity with the party had made a prior inconsistent declaration, but because under the circumstances of "the extreme improbability of their falsehood." (Greenleaf on Evidence, 16th ed., 233.)
Supporting the statement found in Jones on Evidence, supra, are the cases heretofore cited: Chew v. Jackson, supra,Scott v. Crouch, supra, Gulf Red Cedar Co. v. Crenshaw, supra, and Wynn v. Cory, supra. In 22 Corpus Juris, page 232, the rule is stated thus: "It is competent in any action to which it is relevant, although the declarant is not a party to, or in privity with, any party to the action." And in 20 American Jurisprudence, 469, the author says: "A declaration against interest is admissible notwithstanding the declarant is neither a party nor in privity with a party to the action." (Citing many cases; and see annotation in 94 Am. St. Rep. 673.)
In 3 Wigmore on Evidence, second edition, 193, it is said: "The statements may be used in any controversy without regard to the parties concerned." Instead of this statement being unsupported, as the majority says, all of the authorities, Greenleaf, *Page 375 Wigmore, Jones, Nichols, Corpus Juris, American Jurisprudence, state the rule to be as Wigmore states it to be. I can find no exception, and in many of the cases cited the statute is identical with ours. A casual reading of Code sections 10509 to 10514 reveals their limitation to admissions, and they have no application to the exceptions to the hearsay rule found in section 10531.
There is no doubt in my mind that Mrs. Baxter's statements are admissible as declarations against interest in this action. If they are admissible, then they may be used to prove delivery of the deed to Poore and to establish that the instrument was in his possession and so make parol evidence of the execution and contents of the deed admissible.
Wigmore, in volume 3, second edition, section 1465, at page 198, of his work on Evidence, states the rule thus: "Since the principle is that the statement is made under circumstances fairly guaranteeing the declarant's sincerity and accuracy, it is obvious that the situation guarantees the correctness of whatever he may say while under that influence. In other words, the statement may be accepted not merely as to the specific fact against interest, but also as to every fact contained in the same statement."
The rule is stated thus in 20 American Jurisprudence, section 556, page 469: "It is admissible as an entirety including parts not against interest, if the latter are substantially connected with the same subject matter as that covered by the part against interest." (Citing many cases; and see 22 C.J., p. 237; 1 Jones on Evidence, p. 604.)
Certainly that portion of Mrs. Baxter's statement that she had delivered the deed to Poore in escrow for later delivery to the Wilsons was against interest, and it was admissible under any theory to prove delivery to him. The majority says Mrs. Baxter stated only that "Mr. Poore has the papers," and "they were in Mr. Poore's possession." She said much more than that; she said she had given the deeds to Poore in escrow to be delivered to the Wilsons when the Hamilton estate was closed or on her death. Her statement that they were delivered in *Page 376 escrow for delivery to the Wilsons would make out a prima facie case that Poore still had the deeds at the time of the trial.
The majority says that even though delivery to Poore was shown, parol evidence could not be introduced since the deed may have been revocable and Poore may have returned it to Mrs. Baxter. The pleadings do not suggest any such issue. The ordinary presumption is that a deed is irrevocable, and that is true even where it is delivered in escrow. Mrs. Baxter's statement does not tend in any way to defeat that presumption, but rather supports the view, and none other, that the deed was irrevocable and so still in Poore's possession.
But, says the majority, even assuming that the deeds were executed and delivered to Poore and that the proof of their contents could be made by the declarations of Mrs. Baxter, the plaintiff must still fail because of the insufficiency of the statements to prove the contents of the deeds.
First, it must be remembered that this is not an action for specific performance or for recovery under the deeds, but rather an action for damages arising by reason of the alleged wrongful acts of the defendants in either destroying or withholding the instruments conveying the property to this plaintiff and her husband. The statement of Mrs. Baxter, according to the testimony of plaintiff, it seems to me, is sufficient to establish the contents of the deed, so far at least as the Butte Hotel property is concerned. The statement was made, not by some stranger to the deed, but by the grantor herself. In this statement she recited that the Wilsons are the grantees; that the property is the Butte Hotel property, and that she, as grantor, executed the deed. If anyone would be in a position to know what was in the deed, and as to whether it was executed, that person would be Mrs. Baxter, the grantor.
The rule announced in Nelson v. Gough, 61 Mont. 301,202 P. 196, is applicable, since certainly the declarant grantor would be sufficiently aware of the contents of the document which she herself executed that she could at least state substantially its contents and import with reasonable accuracy. *Page 377
To my mind, for the purpose of establishing the contents of the deed, so far as the hotel property is concerned, there can be no question as to the sufficiency of the declaration. The majority says that even though this declaration might be admitted, it is in no way corroborated as to either the execution of the deed or as to its contents. The testimony of other witnesses was offered as to statements made by Mrs. Baxter that she had left and given the property in question to the plaintiff and her husband. In addition there is testimony as to the possession of the property by Mrs. Wilson with the knowledge of Poore, and much other testimony which has some probative value in establishing the existence and contents of the deed.
Under the rule heretofore stated from Wigmore as to proof of collateral facts, Mrs. Baxter's statements should be sufficient to establish a basis for damages resulting from the loss of the stocks and bonds included in the transfer, and in an action for damages I do not conceive that it is necessary to identify the stocks and bonds in question.
By holding as the majority has, that Mrs. Baxter did not have a sufficient proprietary interest in the property at the time she made the declaration in question to constitute it a declaration against interest within the meaning of section 10531, and by further holding that if the declarations were against interest, that they would not be admissible in the present action, since the defendants do not stand in privity with the decedent, the majority has effectively nullified the section, and has announced the rule in Montana by its second holding that declarations against interest of the type Jones defines in the second class of exceptions to the hearsay rule are not admissible unless a party to the actions is in privity with the declarant, and they are admissible only under the theory that they are admissions against interest and that, so far as Montana is concerned, this court will not follow the universal rule as to admissibility of declarations against interest in real property.
I can find neither reason nor necessity for the state of Montana to depart from the rule allowing admissions or declaration of deceased persons against their proprietary interest in real *Page 378 estate, as found in our section 10531 and so universally and unanimously adopted and followed by her sister states. The reason and necessity for the admission of such testimony is just as strong and just as persuasive in Montana as they are in any other state of the Union. There is nothing peculiar about our jurisprudence nor our rules of evidence, and proof of facts which require the adoption of any other rule in this state. I believe as this court did in the Laundreville Case, supra, and as the legislature contemplated when it enacted section 10531, Revised Codes, that this court should follow the rule stated in the text-books and the rule which is hornbook law.
If the holding of the majority as to the admissibility of the declarations of Mrs. Baxter is to stand, then it seems to me that this court sanctions and promotes the cause of injustice which the rule found in section 10531 was enacted to remedy.
Under the holding in Staff v. Montana Petroleum Co.,88 Mont. 145, 291 P. 1042, 1044, to my mind it was error for the lower court to grant the motion for a directed verdict and that the cause should have been submitted to the jury. There is ample testimony here to bring this case within the rule there announced, that is, if "the evidence must be viewed from the standpoint most favorable to plaintiff, and that every fact must be deemed to be proven which the evidence tends to prove [citing cases], and that `no cause should ever be withdrawn from the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery can be had upon any view which reasonably can be drawn from the facts which the evidence tends to establish,'" then there is sufficient evidence here to require the submission of the cause to the jury.
Rehearing denied June 15, 1940. *Page 379