The testimony as to the declarations made by Sylvester Owens was hearsay and incompetent. The witnesses giving this testimony were also incompetent to testify under section 347 of the Civil Practice Act. Nevertheless, in my opinion, the judgment is right and the remaining evidence in the case is sufficient to support it. I do not deem the errors mentioned so vital as to call for a reversal. It seems to me that the fact that Sylvester Owens in 1851 mortgaged certain property to David Fowler, estimated as eight or ten acres of land, and thereafter in 1856 made the first mortgage to Stephen D. Morrison, describing the property by exactly the same description contained in the Fowler mortgage, which had been paid off, is clear and convincing proof that Owens intended to mortgage to Morrison the same land he had previously mortgaged to Fowler, which could not possibly cover the property known as the Hall lot because, at the date of the Fowler mortgage, Owens did not own the Hall property. He did not receive the deed from Hall until about one year after he had made the mortgage to Fowler.
Even though the judgment may have awarded to plaintiffs a small portion of the Hall property, so called, which counsel suggests may have been wrongfully appropriated before the Hall deed was given, appellants are not harmed and the defendants have not appealed.
The judgment should be affirmed, with costs.
Kelby, J., concurs.
Judgment reversed, on the law and the facts, and judgment directed for the plaintiffs, with costs, in accordance with opinion by Jay cox, J.