The plaintiff having levied his executions upon the land as the property of John Chapman, it is admitted, that the proceedings are regular, and he has a right to recover, if the title was in John Chapman. That this title was in him, and remained in him, unless defeated, by the mortgage to Smedley, and the subsequent release to the defendant, is also clearly shewn. But if the debt was paid before the law-day, the legal title was, by that payment, revested in John, and a release from Smedley could have no effect. The defendant claims, that this payment never was made by John, but by him, the defendant; and so the release would operate as an assignment of the mortgage debts, as well as convey the interest in the estate mortgaged; in proof of which, he first offers the declarations of John, when he purchased the property, that he *12made the purchase for the defendant. alive, and was a competent witness ; and it was claimed, that his admissions against his then existing interest, were proper evidence. These declarations are from a person not a party, or a witness, and who might have been called as a witness. The general ruléis, that if the party whose declarations are offered, is living, and can he a witness, his declarations are not evidence. So it is said in Barough v. White, 4 Barn. & Cres. 325. (10 Serg. & Lowb. 345.) Hedger v. Horton, 3 Carr. & Payne, 179. (14 Serg. & Lowb. 261.) In Walker v. Broadstock, 1 Esp. Rep. 459. the declarations of a tenant, living, were admitted, not as evidence of the fact, but of his opinion. And the cases where such evidence is admitted, seem to proceed, generally, upon the principle, that by the decease of the person, better evidence cannot be had. Davies v. Pierce & al. 2 Term Rep. 53. Peaceable d. Uncle v. Watson, 4 Taun. 16. Higham & ux. v. Ridgway, 10 East 109. Roe d. Brune v. Rawlings, 7 East 279. 290. Doe d. Human v. Pettelt, 5 Barn. & Ald. 223. (7 Serg. & Lowb. 75.) Goss v. Watlington, 3 Brod. & Bing. 132. (7 Serg. & Lowb. 379.) Ivat v. Finch & al. 1 Taun. 141.
In our own courts, the persons whose declarations were offered, though not dead, were so situated that they could not be witnesses, or could not be compelled to testify. In Beers v. Hawley & al. 2 Conn. Rep. 467. Hawley was a party, and had conveyed the land with covenants of warranty. In Norton v. Pettibone & al. 7 Conn. Rep. 319. 323. the same facts existed, except that Marks, instead of being defendant, had been cited in, by his grantee, to defend.
It is said, that the plaintiff is identified with John Chapman, because he claims through him. The indorsee of a promissory note, claims through the indorser ; but it does not therefore follow, that the declarations of that indorser can be given in evidence ; as was observed in Barough v. White, above cited. I should think the identity spoken of in the books, referred rather to those cases where the nominal plaintiff was suing, in fact, for the benefit of a third person ; and this identified their interests.
It is further claimed, that John veas the mere agent of Jason; and therefore, his declarations may be given in evidence. But the agency must be established before the declarations can be *13given in evidence, as well as a partnership. The declarations of a person not a party, cannot be received to prove either oí those facts, although when proved, the admissions of such agent or partner may be shewn.
Again, these declarations are offered to prove what title John proposed to acquire. But the deed shews what title he did actually obtain ; and as the question here is merely as to the legal title, that is settled, by the deed itself.
The admission of hearsay evidence ought not to be extended beyond the necessity of the case, as there is great danger of collusion ; and certainly, it ought not, unnecessarily, to be extended to defeat a record title to real estate. I think, therefore, this evidence was properly excluded.
Much less can the repeated conversations of the defendant himself with Mr. Learned, unattended by any act, prove any thing in his favour. If such declarations were admissible, an artful man, by a little previous preparation, would always have evidence ready to meet his case.
As to the declaration of this defendant, when he made the payment, that he borrowed this money of Crandall, it is claimed, that it stands upon different ground ; because it was accompanied by an act done, the payment of the money. This, if admissible, could be for no purpose but to shew that the defendant paid his own money. But as the court directed the jury, that in the absence of all evidence, (and it is not pretended that there was any,) the money paid by the defendant must be presumed to be his own, the defendant cannot have suffered, by the rejection of this testimony. I cannot, therefore, think it necessary to enquire, whether it was admissible, or not. And upon the whole, I think there should not be a new trial.
The other Judges were of the same opinion.New trial not to be granted.