Brown v. Upton

¶1 By the Court.

¶2delivering the opinion.

¶3[1.] The question whether the sayings of the defendant in execution, in favor of the claimant, upon the trial of a claim case, are admissible, is not open in this Court. They were determined to be inadmissible, in Williams vs. Kelsey and Halstead, 6 Geo. R. 376, 377.

¶4*507The admissions of the claimant are good against his title, in favor of the plaintiff in.execution, but not in favor of it, in his own behalf. If, however, the sayings of the claimant are given in, in favor of the plaintiff in execution, whatever he may have said at the same time, and in the same conversation, in his own favor, is legal testimony for him. The whole of what he said at the time, must go to the Jury.

¶5Counsel for defendant in error sought to avoid the effect of the errors assigned, by assuming that it appears from the record that the plaintiff in execution had shown himself that the land was not subject, by proving a parol gift of it to the defendant in execution. Being a parol gift, he says that it is void by the Statute of Frauds ; and if so, no title passed to the defendant in execution, and the land is not subject. The evidence is, that the father of the defendant in execution, gave the land to him; but whether, by parol or deed, does not appear. The record, therefore, does not warrant the assumption.

¶6Let the judgment be reversed.