Pejepscot Paper Co. Et al. v. Farren, [1933] SCR 388

Supreme Court of Canada

Pejepscot Paper Co. Et al. v. Farren, [1933] S.C.R. 388

Date: 1933-05-08.

Pejepscot Paper Company and Others (Defendants) Appellants;

and

Edward A. Farren (Plaintiff) Respondent.

1933: March 1; 1933: May 8.

Present: Duff, Rinfret, Lamont, Smith and Crocket JJ.

ON APPEAL FROM THE APPEAL DIVISION OF THE SUPREME COURT OF NEW BRUNSWICK

Title to lands—Wilderness land—Documentary title—Evidence—Burden of proof—Pedigree evidence—Rule as to such evidence.

The matter in (controversy in the respondent’s action involved the title to and ownership of 200 acres of wilderness or wood-land. The respondent claimed title to the property through a conveyance dated May 3, 1920, from John and James Fitzgerald, the sons and heirs of one David Fitzgerald, deceased, who, in turn, was alleged to have been the only child of one Elizabeth Fitzgerald, the original grantee from the Crown. The appellant company claimed a documentary title to the property through a series of five conveyances from the first deed in 1897 to the last in 1909, and also claimed a title by continuous, exclusive and adverse possession in itself and its predecessors in possession for a period of over twenty years. The trial judge, after having admitted as evidence, subject to objection by appellant’s counsel, the declarations made to witnesses by the two brothers, John and James Fitzgerald, concerning their own pedigree, excluded them in his judgment and dismissed respondent’s action, finding that the appellant company had established its title to the property. The Appeal Division reversed the judgment.

Held, reversing the decision of the Appeal Division (5 M.P.R. 261), that the trial judge was justified in excluding the declarations of the deceased grantors in the deed to the respondent, John and James Fitzgerald, as evidence that they were grandsons of Elizabeth Fitzgerald, the original grantee from the Crown and that he was also justified in reaching the conclusion that the respondent had failed to establish his title. Crocket J. dissenting.

Held, also, Crocket J. dissenting, that the statements made by James and John Fitzgerald to the respondent, when the sale was being negotiated and they were trying to establish their title, would appear to be inadmissible, as having been made in favour of interest and at a time when, in the circumstances of the case, the title itself and the question of relationship had already become matters in controversy within the principle of the rule stated below. At all events, the interest of James and John Fitzgerald was so obvious and of such a character as to entitle the Court to regard their declarations as destitute of evidentiary weight. Declarations as to pedigree made by deceased persons are receivable to establish the particular issue, provided they were made ante litem motam (i.e., “before the commencement of any controversy, actual or legal, upon the same point”), and provided the deceased are proved aliunde to be members of the family by extrinsic evidence. The declarant’s relationship must be

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proved independently and cannot be established by his own statement. The rule must be understood in this sense, that the party on whom the onus lies to establish the affirmative of the issue and who, for the purposes of the issues, must show that A was in family relation with B (as, for example, in such cases as the present where the party seeks to establish a right to property through inheritance from B) must adduce some evidence that the declarant was “de jure by blood or marriage” a member of the family of B.

Per Crocket J. (dissenting).—The trial judge has erred in excluding the declarations of John and James Fitzgerald as evidence that they were grandsons of the original grantee from the Crown; and, when the whole record of the trial, including these declarations, is considered, the decision of the Appeal Division in favour of the respondent should be affirmed. The rule as to pedigree evidence, applicable to this case, is that any declaration made by a deceased person touching his own pedigree is prima facie admissible as proceeding from one who is presumed to possess competent knowledge of the matter of which he speaks, and that no interest, which falls short of constituting a lis mota or actual or legal controversy upon the precise question which is the subject-matter of such a declaration, will render it inadmissible. If it appears, either from the declaration itself or from any other evidence which may be tendered, that there was, before or at the time the declaration was made, such a controversy upon the particular fact of which the declaration speaks and which it is sought to prove by it, the declaration will not be received.

APPEAL from the decision of the Appeal Division of the Supreme Court of New Brunswick[1], reversing the judgment of Mr. Justice Grimmer sitting in Chancery and maintaining the respondents’ action for a declaration that he was the owner of 200 acres of wilderness or wood-land situated in King’s County.

The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.

A. N. Carter for the appellant.

C. F. Inches K.C. for the respondent.

The judgment of the majority of the Court (Duff, Rinfret, Lamont and Smith JJ.) was delivered by

Rinfret, J.—This is an appeal from a judgment of the Supreme Court of New Brunswick, Appeal Division1, reversing Grimmer J. sitting without a jury, who dismissed with costs an action for a declaration that the respondent is the owner of lot number 40 containing 200 acres in the

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parish of Upham, King’s County, in the province of New Brunswick, for an injunction to restrain the appellants from entering on the lot and for damages for trespass and conversion of wood cut on the lot by the appellants.

The respondent claimed to be the owner of the land, which is wilderness land, by virtue of a deed given to himself and one Alexander Crawford, on the 3rd of May, 1920, by John and James Fitzgerald who pretended to have inherited the land from Elizabeth Fitzgerald, the original grantee;—Crawford having later sold his rights to the respondent.

The contention was that Elizabeth Fitzgerald died intestate leaving a son, David Fitzgerald, who in turn died intestate leaving his sons and heirs, the above named John and James Fitzgerald.

The burthen was on the respondent to establish that contention. The respondent claimed a declaration and decree that he was the owner in fee. He produced a deed purporting to come from the alleged heirs of the original grantee. The relationship of the vendors having been challenged, the onus was on the respondent to prove it, not upon the appellants to show that it did not exist. Of course, the deed itself recited the supposed lineal descent, but that was nothing more than the vendor’s own declaration made, at the time of the sale, in order to establish their interest in the land. Recitals of that character do not amount to evidence of title.

James and John Fitzgerald died before the trial and, in fact, some time before the action was brought. As evidence of their relationship with Elizabeth Fitzgerald, the respondent attempted to prove the statements they made pending the negotiations leading to the sale. He also called as a witness one John Meyers, to prove declarations alleged to have been made concerning their genealogy by deceased members of the Fitzgerald family.

Declarations as to pedigree made by deceased persons are receivable to establish the particular issue, provided they were made ante litem motam (i.e. “before the commencement of any controversy, actual or legal, upon the same point”), and provided the deceased are proved aliunde to be members of the family by extrinsic evidence. The declarant’s

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relationship must be proved independently and cannot be established by his own statement.

The rule, we think, must be understood in this sense, that the party on whom the onus lies to establish the affirmative of the issue and who, for the purposes of the issues, must show that A was in family relation with B (as, for example, in such cases as the present where the party seeks to establish a right to property through inheritance from B) must adduce some evidence that the declarant was “de jure by blood or marriage” a member of the family of B.

It was said by Lord Brougham, apparently, in Monkton v. Attorney General[2] that it would be sufficient to show that the declarant was a member of the family of A; and this view of Lord Brougham has been acted upon in other cases and has been very vigorously supported by a well known and very able American writer on the law of evidence, Professor Wigmore.

The weight of authority, however, is decisively in favour of the rule as stated. In the Berkeley Peerage case[3], Lord Eldon expressed himself thus:

Accordingly, in the Banbury case[4], as the depositions under the bill to perpetuate testimony contained many statements with regard to pedigree, a question was put to the Judges, whether if they could not be received as depositions, they could be received as declarations. The Judges thought that at all events the depositions could not be received as declarations, unless the individuals whose declarations were supposed to be incorporated in the depositions were aliunde proved to be relations, and that there was no such evidence.

In Plant v. Taylor[5], Baron Channel, speaking, in 1861, for the Court of Exchequer, which included at that time Baron Bramwell and Sir James P. Wilde, used this language, at p. 237,

As we have stated more than once, the sole question of fact in dispute at the trial was the legitimacy of the defendant Taylor and the female defendants. This depended on the validity of the marriage of the persons who were de facto their father and mother. The fact of the marriage of the father, Thomas Taylor, with Anne Wickstead before his marriage with the mother of the defendant Taylor, and that Anne Wickstead was at that time living, was proved.

The defendant, Taylor, was called as a witness to prove declarations by his father respecting his first marriage. Before a declaration can be admitted in evidence the relationship of the declarant de jure, by blood

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or marriage, must be established by some proof, independent of the declaration itself. See the cases cited in Taylor on Evidence, vol. 1, p. 526, note 4.

Slight evidence, no doubt, would be sufficient. Here there was no proof of any relationship de jure between the declarant and the defendant. The proof was the contrary.

The cases collected in the note in Taylor on Evidence, to which Channell B. refers include, inter alia, the Banbury Peerage case and the Berkeley Peerage case[6].

In Hitchins v. Eardley[7] Lord Penzance who, as above mentioned, was a member of the court which pronounced judgment in Plant v. Taylor[8], said:

The rule of law on the subject is perfectly plain. It is that when a witness is called to give evidence of the declarations of a person whose connection with the family is in question, the judge is to decide whether this connection is established. It is obvious the application of this rule must lead to some practical difficulties, where the person whose declarations are tendered and objected to is also the person whose legitimacy is the question in the suit, and the Court must do its best to meet these difficulties in a practical way.

In Aalholm v. People[9], the Court of Appeals of New York, after a very careful review of the authorities, American as well as English, followed the judgment in Plant v. Taylor8.

The phrase ante litem motam in itself might be capable of misconstruction. It contemplates a time anterior to the commencement of any actual controversy upon the point at issue.

The statements made by James and John Fitzgerald to Farren and Crawford, when the sale was being negotiated and they were trying to establish their title, would appear to be inadmissible, as having been made in favour of interest and at a time when, in the circumstances of the case, the title itself and the question of relationship had already become, it may fairly be held, matters in controversy within the principle of the rule. At all events, the interest of James and John Fitzgerald was so obvious and of such a character as to entitle us to regard their declarations as destitute of evidentiary weight.

In Plant v. Taylor8, the Court of Exchequer thought the declaration of Thomas Taylor, the father, though made before any dispute as regards the property had actually

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arisen, might, perhaps, be inadmissible as a declaration by a person whose mind could not be free from bias; it was manifestly in many ways directly for his interest to make a declaration having a tendency to show that his first marriage was an illegal marriage and the second, consequently, valid.

No case has been cited (said Channell B.) in which the declaration of a deceased person obviously interested has ever been received.

This is reported in 1903 by Joyce J. in Brocklebank v. Thompson[10].

In the premises, the interest of James and John Fitzgerald was so obvious, at the time and in the circumstances the declarations were made, that their statement on the very point in question ought not to be held receivable.

The only other evidence was that of John Meyers who, the trial judge said, “claimed to be a nephew of the Fitzgeralds.” In truth, there is in the record nothing to identify him as a member of the family, outside of his own self declarations to that effect. Myers, if his story proved to be correct, was interested in the result of the litigation and would have the same rights as John and James Fitzgerald. On his own admission, he came down to the trial, from Boston, because he had an interest in the outcome.

Moreover, his evidence comes far short of establishing, in such a way as to satisfy a judicial mind, the all important fact of the connecting link between Elizabeth Fitzgerald and David, the father of the respondent’s vendors. Throughout his testimony, he failed to commit himself to any relevant statement. On the vital issue, the concrete facts are all to be found in the questions put to him by counsel, and his answers are vague and indefinite. In addition, they contain inaccuracies and contradictions pointed to by the trial judge, who found him unreliable and was even disposed to disregard his evidence altogether on the ground of lack of credibility.

We think, for these reasons, the trial judge was justified in reaching the conclusion that the plaintiff respondent had failed to establish his title. The evidence is not of such a character that the courts may judicially act upon it and declare John and James Fitzgerald the lineal descendants

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of the original grantee and, as a consequence, adjudge to the respondent the ownership of the lot in suit.

Perhaps one other point ought to be mentioned. Admittedly, the name of the original grantee’s husband was Ezekiel Fitzgerald. A certified copy of the registration of death of David Fitzgerald was produced. Under the law of New Brunswick, these certificates or “extracts” are “prima facie evidence in any court of the facts therein stated” (The Health Act, R.S.N.B., 1927, c. 59, s. 36-5). In the certificate, the name of David’s father is given as William Fitzgerald. It does not, therefore, correspond with the name of the husband of the original grantee. We are unable to find in the record any ground upon which to repel the evidentiary value of the certificate, which stands with its full force and effect.

There are several other circumstances in the evidence pointing to the same result; but we do not deem it necessary to dwell upon them.

In our view, the learned trial judge was right in deciding that the declaration and decree as to ownership prayed for by the respondent could not be granted by the court. That is sufficient to dispose of the appeal.

The appeal must be allowed and the judgment of the trial judge must be restored with costs here and in the Appeal Division.

Crocket J. (dissenting)—With all deference, I am of opinion that the learned trial judge was not justified in excluding the declarations of the deceased grantors in the Farren-Crawford deed, James and John Fitzgerald, as evidence that they were grandsons of Elizabeth Fitzgerald, the original grantee from the Crown.

Two grounds of objection to the admissibility of these declarations were put forward on the argument, viz: first, that there was no evidence de-hors the declarations shewing any relationship by blood or marriage between the declarants and the original grantee; and, second, that the declarations were not made ante litem motam.

As to the first ground, the law is clear that if a declaration of a deceased person is tendered to prove a matter touching the pedigree of another, it must be proved aliunde that the declarant is related by blood or marriage to the person whose pedigree is in question, but among the numerous

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cases I have examined on the rule relied upon, I can find none which decide that where the declaration of a deceased person is made concerning his own lineage, such a declaration is not admissible until his lineage is independently proved by other testimony. When one considers the fundamental reason for the relaxation, in matters of pedigree as well as in matters of public and general interest, of the rule rejecting hearsay and reputation, one can well appreciate why it has been consistently held that some proof should be adduced of the relationship of a declarant, who is dead, to the person of whose pedigree his declaration speaks, but for my part I can discover no reason for applying such a rule to the declaration of a deceased person concerning his own pedigree. The very ground upon which such declarations are let in on matters of pedigree is the impossibility of proving by living witnesses the relationships of past generations, and the presumption that, when these declarations are made by relatives of the person whose pedigree is involved, they are made by those who have the greatest interest in seeking, and the best opportunity of knowing the truth on the subject.

Similarly hearsay and reputation in the form of declarations of deceased persons are admitted upon matters of public and general interest. Taylor’s treatise on the Law of Evidence points out that on matters of public interest, which concern every member of the state, reputation from anyone is receivable, and that the want of proof of a declarant’s connection with the subject in question affects the value only and not the admissibility of the evidence, all the King’s subjects being presumed to have some knowledge of rights, which are essentially public, while in matters which are not strictly public, but of general interest—being confined to a lesser, though still a considerable portion of the community—some particular evidence of knowledge of the subject matter involved is generally required to render a declaration of a deceased person admissible. In treating of this distinction that well known work states in paragraph 612, 12th ed., 1931:—

If the quality of the hearsay itself raises a natural inference that it was derived from persons acquainted with the subject, the Court will not require independent proof of that fact.

It seems to me that the rule requiring independent proof of relationship of the deceased declarant in cases of pedigree

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with the person, regarding whose pedigree his declaration is made, is based on the same consideration as the rule requiring independent proof in cases of general, as distinguished from public rights, viz:—that the declaration proceed from a source which the law presumes possesses that competent knowledge which is an essential prerequisite of its admission.

Phipson’s Evidence, 7th ed., 1930, states the relationship rule as follows:—

The declarations are only receivable from persons legitimately connected by blood with the person or family whose pedigree is in question, or from the husbands or wives of persons so connected.

Here the declarations objected to are the declarations of two brothers, James and John Fitzgerald, concerning their own pedigree, viz.; that they were grandsons of Elizabeth Fitzgerald, the original grantee. It was the pedigree of the declarants themselves which was in question, and as to this there could assuredly be no more competent knowledge than their own. In the words of Lord Chancellor Cranworth in the Shrewsbury Peerage Case[11],

the declarations are made by (one of the) persons supposed to be perfectly cognizant of

the subject matter of which they speak. To require as a prerequisite to the admission of such a declaration other and independent proof of the very fact which the declarations are tendered to establish, viz: that the declarants were grandsons of Elizabeth Fitzgerald, would, it seems to me, not only involve the same superfluous absurdity, which Lord Brougham points out, in Monkton v. Attorney-General[12], and Taylor’s Law of Evidence, referring to the latter case, in paragraph 640, but “would” at the same time—to quote the words of that distinguished Lord Chancellor in the same case upon the submission that the declarations must be shewn to be contemporaneous with the events to which they relate—”defeat the purpose for which hearsay in pedigree is let in.”

Surely the presumption of the law must be that a man knows the names of his own grandparents as well as others, who are more remote relatives and who must therefore go further afield to connect themselves with the deceased person whose pedigree is in question and who is long since dead.

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Is it reasonable to suppose that once relationship is established, no matter in what degree, with the person whose pedigree is in question, the courts will presume that any relative possesses sufficient knowledge of the pedigree of that person to render his declaration admissible, and yet will not presume that the person himself possesses the requisite knowledge for that purpose? As to whether the fact that the declarants themselves had an interest which might cast suspicion upon the genuineness of their declarations is another question, which I shall discuss when treating of the second ground of objection, remarking only in the meantime that, in my opinion, unless there be a lis mota existent before the declaration which is tendered, interest goes only to the weight and not to the admissibility of the evidence. Apart from the doctrine of lis mota presumed knowledge is the ground of admissibility, not lack of interest.

It therefore seems to me that it is only by assuming that when the rule in question speaks of the necessity of proving the relationship aliunde it refers to a relationship of the declarant with the person or family of the ancestor, through whom a property is claimed, and not of relationship with the person whose lineage is really involved, that that rule can have any applicability to the case at bar. For such an assumption, as I have already intimated, I have been unable to find any decisive authority and no warrant in the principles upon which hearsay evidence is admitted in pedigree cases. If the rule is to be thus interpreted it “would,” as Taylor on Evidence puts it,

to use a homely illustration, render inadmissible the statement of a deceased person as to the maiden name of his own grandmother.

unless the person relying upon such statement were able first to prove by other testimony the very fact which the deceased declarant’s statement is tendered to establish. There would indeed be few cases in which descent from persons of long past generations could be proved at all. No greater encouragement could be given to those disposed to squat on long vacant wooded lands than by the adoption of such an interpretation of the rule as is here contended for.

I concede that it was an essential requisite of the plaintiff’s case that he prove that James and John Fitzgerald, from whom he derived his title to the land, were heirs of

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Elizabeth Fitzgerald, the original grantee, but this fact does not, of course, deprive him of the benefit of the rules of evidence, which, for the very purpose of making possible what otherwise would be impossible, have so relaxed the doctrine against hearsay, as to render admissible for what they are worth all declarations of deceased persons, in matters of pedigree, of which the law may fairly presume the deceased declarants were fully cognizant. The fact that the reputed grandmother was the original grantee of the land in dispute, does not make her the person with whom relationship must be established. The relationship meant is, in my opinion, relationship with the person whose lineage is in question. In the case at bar James and John Fitzgerald were the persons whose pedigree was in reality, as it seems to me, involved. Had they been living and themselves been the plaintiffs in this action I cannot conceive of any valid objection which could have been made on the trial to any question put to either of them as to the names of his grandparents, unless his cross-examination clearly disclosed that he did not in fact know, either by personal knowledge or by family repute or tradition, in which event the presumption the law makes of competent knowledge in such a matter would, of course, be effectually rebutted.

Plant v. Taylor[13], which is chiefly relied on, and upon which the learned trial judge apparently based his decision as to proof of relationship, by no means makes it clear in my judgment that, in such a case as we are now dealing with, any proof aliunde is required to establish relationship with the ancestor from whom the title to the land in dispute is derived. In that case the plaintiffs’ title to the land in question under a power of appointment was conditioned on default of lawful issue of the reputed father of the defendants. Proof of the absence of lawful issue of the defendants’ father was therefore essential to the plaintiffs’ case, and, as stated in the reasons for judgment, the sole question of fact in dispute at the trial was the legitimacy of the defendants. The plaintiffs accordingly proved that at the time the defendants’ father married the mother of the defendants, he was married to another woman. One of the defendants, a son by the second marriage, was called

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as a witness to prove declarations by his deceased father respecting his first marriage. This evidence was rejected by the trial judge, and the Court of Exchequer sustained that ruling. It is true that in the reasons for judgment the Court states that before a declaration can be admitted in evidence relationship of the declarant de jure, by blood or marriage, must be established by some proof, independent of the declaration itself. This passage itself throws no light upon the identity of the persons between whom such relationship must be shewn to exist, but the Court after stating that “slight evidence, no doubt, would be sufficient” of such relationship, proceeds: “Here there was no proof of any relationship de jure between the declarant (the father) and the defendant (the reputed son). The proof was the contrary,” and this, I take to be the real ground of the decision. While it was the legitimacy of the reputed son and his sisters which was in issue, and this depended on the validity of the marriage of the persons who were de facto their father and mother, the Court held, that the plaintiffs having already proved that the reputed marriage with the defendant’s mother took place while the declarant’s wife by the former marriage was still living, a declaration of the deceased father ought not to be received for the purpose of establishing that his own former marriage was invalid and the later one as a consequence valid, and that the defendants were therefore his lawful children, without some proof, independent of the declaration itself, that the defendants were de jure the children of the declarant. I can find no analogy between that case and the case at bar. The law manifestly would not presume that the declarant was cognizant of the invalidity of his own marriage. Moreover, while the declaration tendered in Plant v. Taylor[14] was the declaration of the ancestor himself, to whom, as it happened, the plaintiffs’ title to the land in dispute had to be traced, the decision, as I apprehend it, cannot in any view be regarded as in any way indicating that a declaration of a deceased person respecting pedigree must be shewn, independently of the declaration itself, to be the declaration of one who is related de jure to the ancestor from whom the title to the land in dispute is inherited. If

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it decides anything with respect to the identity of the persons between whom the required relationship must be established it is that a relationship must be shewn to exist between the declarant and the person, whose legitimacy was in question, and in that aspect confirms, rather than controverts, the view I have ventured to express upon this point. Neither do I think that the excerpt from Lord Eldon’s reasons, quoted by my brother Rinfret from the Berkeley Peerage case[15], decides that the relationship which the rule contemplates, is a relationship of the declarant with the ancestor from whom title to the land in dispute must be derived.

As to the second ground of objection upon the question of lis mota and interest, there is no doubt that if at the time the declarations relied on were made there was any actual or legal controversy with reference to the point as to which the declarations were made, viz: the fact of the declarants being grandsons of Elizabeth Fitzgerald, the original grantee, they would not be admissible, but that controversy must relate to the precise point to which the declarations are sought to be applied. See Freeman v. Phillips[16]; also the judgments of Sir C. Cresswell, Wightman, J. and Williams, J., in Shedden v. Attorney-General[17], and particularly the following dictum of Williams, J.:—

I apprehend the true view is this: that the controversy which is to make the evidence of declarations of the members of the family inadmissible must be a controversy which has arisen in respect of the very point in dispute to which the proposed evidence is relevant.

In my opinion there is no evidence that there was, at the time the declarations here excluded were made or at any time, anything in the nature of a lis mota upon that question. The fact of the declarants being the heirs of the original grantee of the land in question was never challenged by the appellant or its predecessors in title otherwise than by the registration of deeds comprising, with many other lots, the lot of land claimed by the plaintiff—deeds which did not pretend to be derived from the original grantee or any of her heirs, devisees or grantees, but which themselves disclose were founded on a conveyance from one W. H. Rourke and five other grantors of the same

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family name, and their wives, dated 13th December, 1897, without indicating any connection with any prior conveyance of any description from any earlier grantor, leaving a hiatus of over 55 years between the date of the original grant to Elizabeth Fitzgerald, which was dated August 4, 1842. These conveyances were no doubt sufficient to pass any possessory title which the Rourkes had established to the lot. While they may be said in that sense to controvert the title of the heirs of the original grantee, they cannot in my opinion be properly held to raise a controversy upon the point which it was sought by the declarations to establish on the trial of this action, viz: that James and John Fitzgerald were heirs of the original grantee. It was at most the possession of the land against the heirs, whoever they were, that the registration of the Rourke deeds disputed—not the identity of the heirs. It is true that the plaintiff in order to maintain his action had to prove that John and James Fitzgerald, through whom he claimed his title, were heirs of the original grantee, and that this fact thus became an issue on the trial of the plaintiff’s action, but, as I understand the doctrine of lis mota, the admissibility of the declarations relied on for the required proof of heirship, is unchallengeable in the absence of evidence that the particular fact which these declarations sought to establish had become a subject of controversy before the declarations were made.

I can find no authority for the proposition that the mere fact that the declaration of a deceased person as to his lineage may have or does have the effect of supporting his title to land to which a claim of adverse possession is being made affords of itself any valid ground for rendering that declaration inadmissible, while on the other hand there are cases which distinctly hold that, in questions of pedigree, declarations tending to support the title of the declarant to land are admissible in behalf of a plaintiff claiming under the declarant if made ante litem motam. See Tilman v. Tarver[18], where Abbott, Lord C.J., said:—

I think them (declarations tending to support the title of the declarant) admissible notwithstanding, having been made ante litem motam. I remember a case of title to a peerage before the House of Lords in which the widow was allowed to prove the declarations of her deceased husband in support of her son’s title, though the husband, if living, would

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have had the right which the declarations went to establish; and this has been followed up since. If no controversy existed at the time, the principle acted on is, that such declarations are admissible, though subject to observation.

In Jenkins v. Davies[19], Lord Denman, C.J., delivering the judgment of the court, used the following words, which appear to me very specially to apply to the present case:—

The last disputed piece of evidence was a deed to which Elizabeth Stevens, then Davies, was a party, under the description of daughter and heiress of John Davies; and one Evan John, an undoubted relation, was also a party. Evan John was the tenant for life of the property in question; and she joined with him in conveying it to those under whom the defendants claimed to hold. Here was the declaration, therefore, both of Elizabeth Davies and of Evan John. It was objected to on account of the interest they had in making out things to be as there represented; and at least this intention of disposing of the property was said to be equivalent to a lis mota. But we think that this objection also fails. No dispute existed: but the parties did what they had a right to do, if members of the family. Almost every declaration of relationship is accompanied with some feeling of interest, which will often cast suspicion on the declarations, but has never been held to render them inadmissible.

It is true that in Whitelock v. Baker[20], Lord Eldon laid it down that the admissibility of declarations of deceased persons on questions of pedigree was founded upon the presumption that the words given in evidence are the natural effusion of the party upon an occasion when his mind stands even without bias to exceed the truth or to fall short of it, and that this has been recognized generally as a qualification of the principle upon which such declarations are to be received, but this dictum does not, I think, mean that it is to be presumed from the mere fact that a declaration of a deceased person upon a question of pedigree would tend to support the declarant’s title to land or other property that there is such a bias as to render the declaration inadmissible.

In Monkton v. Attorney-General[21], Lord Brougham, L.C., commenting upon Lord Eldon’s statement, said:

I entirely agree that the words must be the natural effusion of the party and that, generally speaking, he must have no bias upon his mind. But even here there must be a limit. It will be no valid objection to such evidence that the party may have stood, or thought he stood (for that would equally bias) in pari casu with the party tendering the declaration, and relying upon it for the purpose of his own contention; for it has been decided, that although the party deceased, whose declaration

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you are giving in evidence, was in pari casu, and, if he had been living might have stood in the shoes of the party who tenders his declaration in evidence, that is not sufficient to exclude it.

And again at page 161:—

It was then asked as an argument for the further restriction of the rule, if a man may sit down to frame a pedigree how can you receive that pedigree in evidence like an ordinary declaration, when non constat, he may not have been in the act of making evidence for himself by preparing a document which should afterwards profit him or those in whom he is interested? To that I answer “Show me that the pedigree in question was prepared with that view. Bring it within the rule either of Whitelock v. Baker[22], or of the Berkeley Peerage case[23]; prove that it was made post litem motam, not meaning thereby a suit actually pending, but a controversy existing, and that the person making or concocting the declaration took part in the controversy; show me even that there was a contemplation of legal proceedings with a view to which the pedigree was manufactured, and I shall then hold that it comes within the rule which rejects evidence fabricated for a purpose by a man who has an interest of his own to serve.” The question then always will be (and so far I agree with the argument of the Crown) was the evidence in the particular circumstances manufactured or was it spontaneous and natural? If I thought that this came within the description of manufactured evidence, manufactured for a purpose connected with the present controversy, I should of course at once have rejected it, but upon looking at it and examining it, I cannot upon the whole bring my mind to see that it was fabricated in such circumstances or with such a view as should bring it within the principle adverted to.

That the principles thus enunciated in Tilman v. Tarver[24]; Monkton v. Attorney-General[25]; Jenkins v. Davies[26], and Shedden v. Attorney-General[27] regarding the admissibility of declarations of deceased relatives upon questions of pedigree and the bearing of the doctrine of lis mota therein have never been authoritatively challenged and are still recognized as the settled law of England is clearly shewn by Taylor’s treatise on the Law of Evidence already referred to, where all these cases and many others of the same effect are treated as laying down the law as it now stands upon these important subjects. For instance at page 402 of this work it is stated regarding the legal meaning of lis mota in English law as a controversy:—

The commencement of the controversy was at one time further defined by Alderson, B., to be “the arising of that state of facts on which the claim is founded” without anything more; but this dictum, though afterwards upheld by Lord Cottenham, has since been overruled (Shedden v. Attorney-General and it is now decided that there must be,

[Page 404]

not merely facts which may lead to a dispute, but a lis mota, or suit, or controversy preparatory to a suit, actually commenced, or dispute arisen, and upon the very same pedigree or subject matter which constitutes the question in litigation.

And again at page 403:—

It follows from the above explanation of lis mota that declarations * * * are admissible if no dispute has arisen, though made in direct support of the title of the declarant and * * * that the mere fact of the declarant having stood or haying believed that he stood in pari jure with the party relying on the declaration will not render his statement inadmissible (Monkton v. Attorney-General[28]).

And, again on the same page, referring particularly to a peerage case (Zouoh Peer 1807) Parl. Min., 207, which seemed to throw some doubt upon the admissibility of a declaration made in direct support of the title of the declarant:—

But even if the peerage case just referred to be not susceptible of this explanation, a single isolated decision can scarcely controvert a rule of law which has been sanctioned and acted upon by numerous Judges and is so founded on reason that a contrary doctrine would go far towards excluding all evidence of reputation.

For the reasons already appearing, I am of opinion that any declarations made by a deceased person touching his own pedigree is prima facie admissible as proceeding from one who is presumed to possess competent knowledge of the matter of which he speaks, and that no interest, which falls short of constituting a lis mota or actual or legal controversy upon the precise question which is the subject-matter of such a declaration, will render it inadmissible. If it appears, either from the declaration itself or from any other evidence which may be tendered, that there was, before or at the time of the declaration was made, such a controversy upon the particular fact of which the declaration speaks and which it is sought to prove by it, the declaration will not be received.

Plant v. Taylor[29], already referred to, and a passage from the judgment of Joyce, J., on the trial of the action of Brocklebank v. Thompson[30], are particularly relied upon in support of the proposition that the declaration of a deceased person upon a matter of pedigree is inadmissible if the declarant is obviously interested or the declaration is one which is obviously made for his own interest.

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I have already pointed out in discussing the first objection the dissimilarity between the facts in Plant v. Taylor[31] and those in the case at bar, and what was the real ground of the decision in the former. At best the statements relied upon in that judgment were mere dicta, and obviously contingent ones, as appears from the words by which they are introduced:

Perhaps the learned trial judge was right in excluding the evidence on the ground that any declaration * * * though not made post litem motam * * * would be a declaration by a person whose mind could not be free from bias.

Had the decision been based upon the ground of obvious interest, which the court seems to have been careful to avoid, no criticism could well have been made of the statement that a declaration tending to shew that the declarant’s first marriage was void and his second consequently valid, the negation of which would have stamped him as a bigamist, was a declaration which “it was manifestly in many ways directly for his interest to make,” but that would not have made it an authoritative decision to support the proposition that the mere fact that a declaration tended to support a title to a small lot of vacant woodland, was a declaration that was so obviously made in the declarant’s own interest as to warrant its exclusion in view of the long line of authoritative decisions to the contrary.

The statement of Joyce J., in Brooklebank v. Thompson[32] is a repetition of the dictum relied on in Plant v. Taylor31 and in a case which likewise has no application whatever to the case now under discussion. The declaration there in question, which was a written memorandum made in the year 1762 by the plaintiffs’ predecessor in title, related to the existence of a churchway through the demesne of a manor and was tendered as a declaration of reputation concerning a question of alleged public or quasi public right for the purpose of proving that the way was limited to a certain class of tenants of the manor. The learned trial judge held that it was not such a declaration, “but, if anything, at the very utmost only a statement by the person most interested denying or disputing the existence of a right in any but the ‘tenants above wall,’ (whatever may be the meaning of that expression) to a church

[Page 406]

way through the demesne” of the particular manor, and that it was a private statement, and then quoted the dictum from Plant v. Taylor[33]. No question of pedigree was in any way involved in Brocklebank v. Thompson[34] and presumably Joyce J. held that the declaration in question did not concern any public or quasi public right. In my judgment it in no manner touches the matter now in question. I can find no reference in Taylor’s Law of Evidence to this case. Phipson on Evidence cites it at p. 232 among other cases as authority for the proposition that declarations by predecessors in title are not evidence for their successors “unless receivable on other grounds,” and at p. 286, coupled with Plant v. Taylor33, as authority for the further proposition that declarations made in direct support of a claim contemplated to be brought by the declarant or otherwise obviously to subserve his own interest, will be rejected, but immediately adds “but if no dispute has arisen or claim been contemplated the fact that the declarations tend to support his own title or that the declarant stood or believed he stood in pari jure with the party relying on them affects their weight only and not their admissibility,” citing Jenkins v. Davies[35], from which I have already quoted Lord Denman’s decisive observations.

The learned trial judge having erred in excluding the declarations referred to, as with the utmost respect I think, for the reasons above stated, he did, his judgment on the question of title or descent clearly cannot stand, notwithstanding His Lordship’s very strong comments upon the unreliability of the testimony of the witness, David Myers, whose evidence in my opinion as to his being the grandson of David Fitzgerald and the nephew of James and John Fitzgerald, was corroborated by the testimony of three or four independent witnesses. When the whole record of the trial as it came before the Appeal Division, and as it is now before us is considered, including the declarations which the learned trial judge subsequently to the trial decided should be excluded, and which he did exclude from his consideration of the cause, I am bound to say that it has produced upon my mind the same conviction which it did upon the mind of the Appeal Division.

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It is only necessary to mention the fact that the certified copy of the grant to Elizabeth Fitzgerald and the memorandum attached thereto as an official government document shewed that the grant was made to her as the widow of Ezekiel Fitzgerald, to whom it had been allotted on account of military service, and that he, Ezekiel Fitzgerald was a sergeant in the 34th Regiment, a well known regiment then quartered in New Brunswick; that David Myers, the nephew of James and John Fitzgerald, who had lived with them and with their father and his grandfather, David Fitzgerald, as a boy had heard them all speak of his great-grandfather being a lieutenant or sergeant in the army; and the further declaration of James and John Fitzgerald, as testified by the plaintiff in reply to a question by the learned trial judge that when he (plaintiff) asked them where the original grant of this property was, they told him it was burned in a trunk when they were burned out in a fire at 98 Winter Street, Saint John, with the statement of the plaintiff that he had personal knowledge of the fire to which the declarants had referred. Farren also swore that when he asked them if they had ever been into the property, James told him he had been in with his father as a boy. Other witnesses swore that they had heard James and John Fitzgerald at different times speak of owning woodland in Saint Martins, where this land was situated. These declarations, it seems to me, were declarations which bore upon the question of their descent from the original grantee, and were admissible with evidence of all other facts bearing thereupon for the purpose of establishing a series of facts from which the affirmative of that issue might be inferred as a reasonable probability, within the meaning of the dicta of Lord Chancellor Loreburn in Evans v. Astley[36], and Lord MacMillan in Jones v. G. W. Ry.[37].

I also agree with the Appeal Division that there was no evidence upon which a finding of open, continuous, adverse possession for the statutory period could properly be made under the authorities.

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The appeal in my opinion should be dismissed with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Lewin & Carter.

Solicitor for the respondent: George H. V. Belyea.