Page:Federal Reporter, 1st Series, Volume 8.djvu/573

UNITED STATES V. GEISWOLD. 559 �paying the taxes and receiving the rents either in person, giying receipts:in his own name and as for hiraself, or by his agent, Mr. J. J. Murphy, until June, 1879, since when the rents have been collected by the defendants Ladd & Bush, bankers of Salem, in the name of J. 0. G., and accounted for to her until December, 1879, from whlch time they have been collected by the re- ceiver herein. �On April 13, 1878, said lot 1 was conveyed by Griswold and " J. O. 6., his wife," to the board of commissioners for the sale of school lands, to aecure a loan of $5,000, payable in one year thereafter, with interest at the rate of 10 per centum per annum, which money was received by said Griswold and used in his business as his own, and still remains unpaid, except the portion of the rents applied thereon by the receiver. �From 1867 to 1878, inclusive, the promises were assesaed and valued for general taxation as follows: 1867, to W. C. G., $25,000; 1868 and 1869, to James M. Adams, at $25,700; in 1870, to Chester Adams, at $18,000; from 1871 to 1876, inclusive, to W. C. G., at from $23,600 to $21,300; in 1877, lot 1, to Chester Adams, at $19,000, but block 38 to "W". C. G., at $1,500; and in 1878, lot 1, to J. O. G., at $18,000, and block 38 to W. 0. G., at $1,200. Thpse val- uations, according to the established usage of the country, did net exceed one-half the real value of the property, and probably not more than one- third. �Until some time after the commencement of this litigation it does not appear by any act or declaration of Griswold or his wife that this property was ever regarded by either of them as belonging to her, while every act and declaration of Griswold, aiid particularly what he said and did while actually in possession of the ptemises, points nnequivocally to the conclusion that he was the actual ownef. �But it is contended on behalf of Mrs. Griswold that Griswold's acts and declarations, after he conveyed the legal title to James M. Adams, are inadmissible to afifect her right in the premises,' unless assented to by her, citing, among other authorities, 2 Phil. Ev. note 481, p. 655. �It is admit ted that the general rule is, as therein stated, "that declarations made by the person under whom the party claims, after the declarant has departed with his right, are utterly inadmissible to afifect any one olaiming under him." But it is understood that this rule does not apply where the declarant has not parted with the possession as well as the title. When the question of whether a conveyance is fraudulent or not arises between the grantee and the ereditor pf the grantor thereon, the crediter may always show that notwithstandiug the conveyance the grantor continued in possession and control. To this end acts of the grantor implying ownership and control may be shown, and, also, as a part of the res gestce, the declarations aoeom- panying such acts or possession may be proven to show Jthe natitrej ��� �