#### Consolidated Tank Line Company v. Bendix Pien et al.

Filed April 16, 1895.

No. 6364.

1. Ejectment: Evidence. The declarations of a former owner of land are not admissible as against those claiming under him when made after he has conveyed the land.

2. -: -. The evidence *held*sufficient to sustain the verdict.

Error from the district court of Hall county. Tried below before Harrison, J.

*W. H. Platt,*for plaintiff in error.

*W. A. Prince, contra.*

Irvine, C.

This was an action of ejectment by the plaintiff in error against Bendix Pien and Johann Frederick Wiese for a small tract of land adjoining the city of Grand Island. The plaintiff, in 1888, purchased a tract including that in •dispute. Bendix Pien had been the owner of a tract immediately north of this for many years and in 1887 conveyed it to Wiese by warranty deed. The tract, gs fenced and occupied by the defendants, included a portion of that •claimed by the plaintiff, and this portion was'the land in in controversy. The contest was practically centered upon the plea of adverse possession interposed by defendants. 'There was a verdict and judgment for defendants.

Plaintiff in error argues but two assignments. One of these relates to the exclusion of evidence, and the other is that the verdict is not sustained by the evidence. Of the latter assignment it is sufficient to say that the evidence has been examined and that it discloses a conflict in some par*888tieulars rather remarkable. We are satisfied that there was sufficient to sustain the verdict of the jury. The other assignment is that the court erred in excluding the evidence *of*an admission made by Pien. It would be inferred from the evidence that Pien continued, after his conveyance to Wiese, to reside on the land with Wiese. The nature of his residence does not appear. The admission referred toT according to the offer made by plaintiff, must have beea made in 1889, two years after Pien had conveyed his whole estate to Wiese, and was to the effect that Pien knew his-fence was beyond his line. It has been held in this state,, in accordance with the general rule, that the declarations of a person in possession of property as to his title are admissible against him and all persons claiming under him *(Cunningham v. Fuller, 35*Neb., 58); but we do not think that this rule extends so far as to authorize the admission in evidence of declarations by a grantor of land made after the conveyance in disparagement of the title conveyed. To admit such evidence would open the door to fraud, and would permit the grantee’s estate to be divested by the statements of his grantor contrary to the terms of his deed. The reasons given for admitting in evidence the declarations of a former owner are that the declarant was-so situated that he probably knew the truth, and that the declaration in disparagement of his title, being against his. interest, .was probably true. The latter reason fails altogether when the former owner has parted with his interest, before making the declarations. *(Chadwick v. Fonner,*69 N. Y., 404.) That such admissions are not receivable iiu evidence when made after the grantor has parted with his; title see *Christie v. Bishop,*1 Barb. Ch. [N. Y.], 105. There was no error in excluding this evidence.

Judgment affirmed.

Harrison, J., not sitting.