Smith against Vincent and others, 15 Conn. 1

Williams, Ch. J. 1. Were Fenn’s admissions properly received ? It is claimed that Fenn is a mere tenant, and has no real interest. But he was properly made a party to the suit; and the plaintiff must prove his case against each and every defendant; and the court can no more exclude the admissions of one defendant than of another, under the idea that one has a deeper interest than another. If the suit were on a note against principal and surety, the declarations of the surety could not be ruled out, although if the principal is of sufficient ability, he would have but a nominal interest.

And this court has decided, that the declarations of a party on record must be received as evidence, though his situation may be taken into consideration in weighing the evidence. Coit v. Tracy, 8 Conn. Rep. 277. In this case, proper instructions were given to the jury as to its character; and we can see no other course, which could have been legally pursued. 2. The question as to the evidence of Fenn’s pecuniary condition, has been too recently before this court, and too much considered, to allow us again to debate it: we are satisfied with the decision in Olmsted v. Hoyt, & al. 11 Conn. Rep. 376. 3.

To meet the evidence last-mentioned, the defendants offered to prove Fenn’s property to have been considerable. To this, no objection was made. They then offered to prove, by the book of accounts kept by Fenn, and the entries therein made, that there were debts due him to a large amount. This evidence was excluded; and we think, it was properly excluded.

This evidence is a naked entry of a party in interest, in his own favour, upon his books, that he has delivered such and such articles, and done such service for another for which he expects payment, unaccompanied with any proof of the time when made, or of the fairness of his books, or that he kept account of credit as well as debt, or any corroborating circumstance in connexion therewith. In Dwight v. Brown, 9 Conn.

Rep. 84. 89., where the entry was made against the interest of the party making it, the evidence was admitted, by a divided opinion of this court; but the cautious manner in which that opinion is guarded, shows what would have been the opinion of the court, at that time, upon this question. And in the case of Newell v. Roberts, 13 Conn. Rep. 72. we refused to admit receipts of third persons as evidence, upon proof that they were duly signed. There, to be sure, the witnesses might be called ; but it was considered that such testimony was of a dangerous character. How much more dangerous would this be ?

It comes from one who had a deep interest in the subject matter, and is unaccompanied with any corroborating circumstance, or with any account of the time of making the entries, or any fact tending to show it is a full account between the parties. And upon each several account, an issue might bo joined to show the state of indebtedness between the parties. It is said, however, that it is admissible, because it is original in its character. Greenl. Evid. 147. Upon examining the authorities referred to there, we think none goes the length of this case.

Indeed, it is believed, that the two late English common law authorities will justify the ground taken by the judge in this case. These were cases of acts done, and entries made of those acts, by an attorney and a clerk, then deceased, in the course of their business, and according to it, admitted with other corroborating circumstances to prove the fact. In the case of Doe d. Patteshall v.

Turford, 3 Barn. & Adol. 890. the fact that the entry was made at the time, that it was according to the course of the business at the office, that it was according to a request to give the notice, and the fact that other notices were also then given, were considered as important. And these corroborating circumstances, says Taunton, J., must be proved. And in Poole v. Dicas. 1 Bing. N. C. 649. the entry of the dis-honour of a bill by a clerk, in a book kept for that purpose, he being deceased, was admitted, Tindal, Ch.

J., considering it to have been proved, that the entry was made at the time, (if it was not, he says it should be sent back again,) adds: “ It' was all in the ordinary course of business. The clerk had no interest in making a false entry: it would be likely to bring him into disgrace with his employers.

The book was open to all the cierks, so that a false entry would be exposed to a speedy discovery ; and there were many corroborating circumstances.” Gasalee, J., says : “ The entry is one of a chain of circumstances, each confirmatory of the other, and therefore, the reception of the evidence was correct.” All such circumstances are here wanting ; and we think this evidence was properly excluded. 4. As to the Havocs debt, the defendants now claim, that the court should have instructed the jury, that this debt was paid. But we do not find that any such claim was made below.

And if it had been, we think it was rather a question of fact on which the jury were to pass, than of law. And were it otherwise, we are not prepared to say, that there is such evidence of actual payment, as will justify us in granting a new trial. 5. One other objection was made to the charge ; that the judge held, that if the mortgage of the defendants wás paid, it furnished no defence for them in this action. If we were to be governed by the authorities in the state of New-York, or the opinion of the distinguished commentator, who so ably filled the chancellors seat, this would be correct. Kent’s Com.

part VI. lect. 58. But this question was settled, by the supreme court of this state, after an able argument, in the case of Phelps v. Sage, 2 Day 151. in conformity to the well settled practice. The same decision has been made in the state of Massachusetts. Parsons v. Welles & al. 17 Mass. Rep. 419. And whatever may be said of the more liberal practice of modern times, we think that it will much better comport with the policy of our laws, that the parties should have this inducement to make our records show, as far as practicable, the real state of the title to real property. Ch. J.

Iiosmer treats it as a settled question. 5 Conn. Rep. 136. And we had no intention of disturbing it, by the decision of Porter v. Seeley, 13 Conn. Rep. 564. The judge who gave the opinion in that case, does indeed introduce the decision in the state of New-York; but, without adverting to the case of Phelps v. Sage, he sums up that case, by saying, that “ the attempt to bar the action, by the title of the mortgagee, is made by a stranger, who has no interest whatever, in the debt or land.” P. 576. So far the court intended to go, and no farther.

We would not permit a person without a shadow of title, to protect himself, by a satisfied mortgage. In doing this, however, the court could not have intended to overrule a decision on this very point, which was not adverted to, on the trial.

If the condition of this deed was not performed, we cannot see why the legal title does not remain in the mortgagee ; and if equity would ¡%gem to require us to say, that the debt being paid, the object is accomplished, and so the title reverts, we would say in reply, that it is the policy of our law that our titles should appear upon our records ; and we are not disposed to overturn decisions, well calculated to subserve that object. As it does not appear upon this motion at what time this payment was made, perhaps the fair presumption is, that the payment was made at the day, and so the condition is performed.

At all events, the party moving for a new trial, ought to show, that it was after the day. As this does not appear, we do not feel called upon to grant a new trial. In this opinion the other Judges concurred. New trial not to be granted.