#### Kelley vs. Kelley.

*Bill of Exceptions*— Presumptions *in fwor of judgment dec., where bill does not contain aU the evidence*— Evidence—Statements *of party in possession.*

1. Where a bill of exceptions does not purport to contain all the evidence, it will be presumed, in support of the judgment, that the instructions given to the jury were applicable to the evidence.

2. So also it will in such a case be presumed, where the admission of certain evidence was excepted to, that the facts had been shown which would have rendered it admissible.

3. Where the question is, whether a certain frame building placed upon land without being fixed on the soil became a part of the realty, the statements of the party who placed it on the land, being at the time in possession thereof, claim-* ing title, as to his intention in so placing it, are admissible in evidence, although he is not a party to the suit.

APPEAL from tbe Circuit Court for *Fond du Lae*County;

Action, to recover possession of a frame building, twelve by *444fourteen feet, built for a granary. ■ So much, of tbe evidence for tbe plaintiff as is contained in tbe bill of exceptions, shows tbat tbe building was erected six or seven years before tbe action, by one Ingles, on tbe northeast quarter of tbe southeast quarter of section 17 in a certain town in said county; tbat in November or December, 1863, it was moved by *Ingles*on to tbe north half of the southwest quarter of section 16, in tbe same town ; tbat it remained there on poles or rails, just as it was moved, until April 25, 1864, not being used for any purpose, and was then moved back by Ingles to section 17; tbat plaintiff bought said land in section 16 of one Welton, and took a deed, April 13, 1864; that a patent for tbe same was issued to Welton from tbe state, December 28, 1863, it being school land; tbat Ingles lived upon tbe land in sec. 17 when be built said granary, when it was removed, and when it was moved back, and up to the fall of 1864; and that Welton “ bad bad a conversation with said Ingles about tbe land and buildings” on said sec. 16, but at what time tbe conversation was held does not appear from tbe printed case. Tbe plaintiff then asked Welton, as a witness for him, “to state what was said by Ingles” in tbat conversation. An objection by defendant was overruled, and tbe witness answered: *“*I told him. I bad bought tbe land. Says be, 11 have moved tbe granary on to it.’ 'I said, ‘ Then tbe granary must be mine;’ and be said *‘*I suppose tbe granary must be yours,’ or ‘It is yours’- — -I would not be positive which.” Tbe plaintiff then put in evidence a deed from Ingles to one Matteson for said premises in sec. 16, dated October 15, 1863, and recorded October 22, 1863. Tbe defendant proved tbat tbe premises in sec. 17 were mortgaged by Ingles to one Boyd, July 19, 1855; that tbe mortgage was foreclosed in October, 1862, tbe premises sold under tbe judgment December, 5, 1863, to tbe mortgagee, and tbe sale confirmed and a sheriff’s deed executed tbe same day, which deed was recorded December 24, 1863'; tbat Boyd conveyed tbe premises to tbe defendant in April, 1864; and tbat defendant *445bought the building in dispute of Ingles after it was moved back to sec. 17, paying $50 therefor. He then “ offered to show how the building was situated on sec. 17, for the purpose of showing that the mortgage became a lien on it, and that the title to the building passed by the foreclosure sale ;” but the evidence was rejected.

The defendant asked the following instructions to the jury, which were refused: “ 1. If Ingles had sold the land in sec. 16 to Matteson, before he moved the building on to it, title to the building did not pass from the state to Welton, and from him to the plaintiff; and Ingles had a right to remove it. 2. If Ingles intended when he moved the building on to sec. 16, to have it enure to the benefit of himself or to Matteson, the title to it did not pass from Welton to the plaintiff.” The court then instructed the jury that the question whether the building was a part of the realty depended on the intent of Ingles; that if he, having or supposing himself to have title to the land, placed the building there with the purpose of having it remain permanently, it was a part of the realty; and that such intent was to be found from all the facts surrounding the transaction.

Yerdict for the plaintiff; motion for a new trial denied; and judgment upon the verdict; from which the defendant appealed.

*Blair &*Coleman, for appellant,

argued that as Ingles was not a party to the action, nothing he might have said to Welton could affect the defendant’s rights, unless it became a part of some transaction (6 Wis., 63); that in fact the words testified to were no part of the *res*gestee, and constituted mere hearsay evidence; that the deed to Matreson divested Ingles of all claim to the land in sec. 16, before he moved the building on to it; and that there was no evidence for the jury to weigh as to whether he then supposed he had title to the land.

*Qillet & Conlclin,*for respondent.

*446Cole, J.

As tbe bill of exceptions does not purport to contain all tbe evidence given on tbe trial, we must assume that tbe state of tbe proofs was sucb as to render tbe instructions given proper and pertinent, and to show that those asked and refused would bave been improper. Sucb a state of facts might bave been estabbsbed by tbe testimony as to make tbe charge of tbe court applicable, although upon tbe evidence as returned it might in some respects seem to be erroneous.

• And it is obvious that tbe same remark applies to tbe objection taken to tbe admissions of tbe declaration of Ingles. It might bave appeared that be was in possession of the premises on section 16 after be sold tbe land to Matteson, having title, or claiming title, so as to render bis declarations good as against tbe defendant. Tbe declarations of Ingles, while in possession of tbe land on section 16, as to bis object in placing tbe building on that land, and whether be really intended that it should become a part of tbe realty, were competent evidence. Tbe declarations, it is true, were not entitled to much weight either way; but we are inclined to tbe opinion that they might bave been admissible, if it appeared that they were made while Ingles claimed to be owner of tbe premises.

*By the Court.*— Tbe judgment of tbe circuit court is affirmed.