Counsel for the defendants in error earnestly insist that the decision of this court is erroneous upon several points, and especially as to the admissibility of the declarations of William Wallace, under whom the defendants in error claim title to the land.
The statement of the evidence admitted upon which the question is raised is as follows:
"The eighth bill of exceptions shows that 'son William' was allowed in another set of depositions to say that his father had frequently told him that he had a nephew who went to Texas, and was killed in 1836, at what was known as the Fannin massacre."
It does not appear at what time the declarations were made, and counsel claim that it does not appear that they were self-serving, because made before the granting of the certificate under which the land is claimed. From the declarations, it appears that William Wallace, claimed to be the nephew of the declarant, was then dead, and if the declarations under other evidence in the record be true, the declarant would be sole heir of the deceased and entitled to his estate, whatever it might be. Besides, the deceased soldier's heirs were entitled to land under a law in force at his death.
It is insisted that this court has decided contrary to the weight of authority upon this question, and in conflict with the cases of Boone v. Miller, 73 Tex. 557; Louder v. Schluter, 78 Tex. 103, and Simpson v. Fowler,79 Tex. 614. The question is not remotely hinted at in the first two cases. In the last it is perhaps true that this question *Page 517 was before the court, but it is so indefinitely stated that it is not certain that the court decided upon the very issue. The opinion was delivered by Judge Henry, in which he said: "The defendant Simpson, as appellant, assigns as error a ruling of the court in permitting John F. Fowler, one of the plaintiffs, to testify to the declarations of his father, James Burton Fowler, that he was the surviving brother and only heir of Sam and John Fowler, made before he conveyed the land to plaintiffs. It is contended that the declarations of James Burton Fowler made at the time that he claimed to own the lands were not competent evidence. James Burton Fowler was dead when the testimony was given. With regard to the admission of hearsay evidence in case of pedigree, Mr. Greenleaf says, that the law resorts to it 'upon the ground of interest of the declarant in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in succession in question.' The evidence was properly admitted." This is all that there is in the opinion touching the question.
What is decided by this case? The assignment of error was broad enough to embrace the objection that the declaration was made by the party in his own interest, but the proposition deduced from it by the judge in this language, "It is contended that the declarations of James Burton Fowler, made at the time that he claimed to own the land, were not competent evidence; James Burton Fowler was dead when the evidence was given," seems to narrow it to two questions that might be presented, that is, that the testimony was hearsay, and that the declarations were made by him while in possession of the land, and not being in disparagement of his title, were not admissible. Looking to the quotation from Mr. Greenleaf, which is the decision of the question, we can arrive at what the court understood the question to be by ascertaining what was decided. The text of Mr. Greenleaf, as quoted, rests upon the proposition that such declarations are admitted upon the ground of interest in the person from whom the descent is made out, and that being so interested, they would likewise be interested in knowing the family connection or pedigree. He then states the rule to be, that only declarations of those related to the person by blood or marriage, and therefore, that is, because of their relationship, interested in the succession or order of succeeding to the rights of the ancestor. Nothing is decided in this case which bears the remotest analogy to the question presented here. The quotation from Mr. Greenleaf was apt upon the question of whether the evidence as hearsay was admissible, but upon the question that the declarations were self-serving the text quoted was without any relevancy. *Page 518
The summary manner in which the court disposed of the question was proper, if the proposition was that the declarations were hearsay and not admissible, and the court might well dismiss such a question with a quotation of that kind; but if it had been the question now before the court, Judge Henry and the court of which he was a member would not have misapplied the text as quoted nor dismissed the question without careful investigation. We conclude that the case does not decide the question. If it is to be so understood, however, we would be constrained by authority and reason to overrule it. In addition to the authorities cited in the original opinion, we add the following as being in point and in support of our conclusion: 1 Phil. on Ev., 5 Am. ed., pp. 202, 203, 228; Best on Ev., p. 477; Whitlock v. Baker, 13 Ves., Jr., 514; Berkley Peerage case, 4 Camp., 415; Rex v. Cotton, 3 Camp., 446; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 N.H., 371.
All of the authorities cited above sustain the text of Mr. Phillips, p. 228, which is as follows: "It has been thought to be some safeguard sufficient to warrant the admissibility of the evidence, upon points where no better evidence can commonly be expected, that the declarant could derive no advantage from his own statements, and that there was at the time no exciting cause to induce him to depart from the truth." This is in substance stated upon pages 202 and 203 of the same author. In matters of public interest, such as rights of common and the like, declarations are admitted from disinterested persons only. Greenl. on Ev., sec. 145. And in matters of boundary between private individuals declarations of deceased persons are admitted if not interested when the declarations were made, or the declarations were not such as would directly benefit the declarant. Stroud v. Springfield, 28 Tex. 666.
In pedigree, matters of public interest, and ancient boundaries, the law excludes declarations of all persons made post litem motam, because it presumes that even the interest one may feel in the success of his friend might bias the statement and deprive it of its value as a statement impartially made.
If the proposition contended for in this case be established, then we have this strange contradiction in the common law, that if William Wallace had been upon the stand under the common law rules he could not have testified, although under the sanction of an oath and subject to cross-examination; yet if he declared the same matter not under oath, not in the presence of the opposite party, and when he could not be cross-examined, such statements would be admissible to sustain his right asserted by his ex parte declarations.
It is not contended that the rule as to hearsay is changed by our statute rendering interested persons competent to testify, and we apprehend that it would not be so contended. *Page 519
We have carefully examined the authorities referred to by counsel and all those cited by Mr. Phillips, except Monkton v. the Attorney-General, which we can not find in our library, and the result is, that the greater number of them do not remotely sustain the proposition. They are in the main nisi prius trials, reported in such manner as to be very unsatisfactory and unreliable as authority.
Tilman v. Tarver, 21 Common Law Reports, 719, is a case in which the declarations of a woman show the extinction of issue of persons standing in the line of entail between her and the person then in possession of the property. But there was not in that case any present interest, for it was a remote probability that she might come to the enjoyment of the property.
In Jenkins v. Davis, 59 Common Law Reports, 313, an estate had been granted with a number of limitations, and, upon reaching a certain person, to be held by him for life, with remainder to the right heirs of the grantor. The life tenant being in possession, joined with a woman conveying the land to a third person, stating she was the right heir of the original grantor, and the court admitted the deed as a declaration of the two. This was sustained, upon the ground that the declarations of the life tenant, who was also a relative, were admissible, and also because the interest of the woman did not render her declarations inadmissible. These cases are the nearest in point and in support of the position of defendants in error of any that we have found, but they are not so clearly cases in which the evidence was not admissible as the case at bar. In the case first cited the interest was very remote, while in the latter case no interest was acquired by the declaration. It was, as the court said, an act which the party had the right to perform, and in which all interest was parted with. In the case before the court the declarations were made obviously in the interest of the declarant; he was by the declarations, if admitted, established to be the sole heir of the deceased. It was a statement made contrary to the rule that it must be such as was not under the influence of any interest that would be active in inducing him to depart from the truth. It was not a remote interest, but one that was present. It was not an interest parted with, but one to be acquired.
We find no error in our former opinion, and the motion for a rehearing is overruled.
Application overruled.
Delivered February 11, 1895. *Page 520