Page:Federal Reporter, 1st Series, Volume 8.djvu/574

560 FEDERAL EBPORTER. �estent, and purpose thereof. See 2 PMI. Ev. note, supra, pp, 654, 652. �In Trotter v. Watson, 6 Humph. 509, as stated in 1 Meigs' Dig. 54y, it was held that "if a party make a deed, and retain the possession of the property inconsiatently with the terms of the deed, his statements in reference to the ownership, or contract, or terms upon which he holds the possession of the property, may be received as part of the res gestce. In such a case the possession of the property is a badge of fraud, which of itself connecta him with the claimant in the suspicion of a confederacy to defeat creditors. His declarations, therefore, in relation to the property, and the character of his possession of it, be- come part of the wrong doing, and as such is evidence." �Greenleaf, (vol. 1, § 109,) after stating that there had been some difference of opinion as to the admissibility of such declarations, and that if was well settled "that declarations in disparagement of the title of the declarant are admissible as original evidence," says: �•' But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the declarant's title, or otherwise qualifying his possession, if made in good faith, should not be received as a part of the res gestœ, leaving its effect to be govemed by other rules of evi- dence." �In Williams v. Hart, 10 Eep. 74, the supreme court of Georgia (1880) held the declarations of a debtor, in possession of land after a sale by the sheriff upon an execution against the declarant, to his son, to the effect that the sale was fraudaient as against creditors, ad- missible against the purchaser, citing with approval the rule laid down in 69 Ga. 711, that — �"So long as a debtor reraains in possession of property which once belonged to him, and which his crediter is seeking to condemn as fraudulently coiiveyed, the res gestœ of the fraud, if any, may be considered as in progress ; and hia de- clarations, though made after he has parted with the formai paper title, may, by reason of the continuous possession which accompanied them, be given in evidence for the cieditor against the claimant." �In Cahoon v. Marshall, 25 Cal. 202, the court, in speaking of the declarations of the vendor after a sale, says : �" This species of evidence is, as a general rule, inadmissible, and is never to be received unless it appears that the vendor's declarations were made while in possession of the property, with the knowledge or consent, expressed or implied, of the vendee, in which case his declarations, made while in posses- sion of the property, * * * might be considered as of the res gestœ." �The rule deduced from the authorities by Bump (F. C. 569) is un- qualifiedly in f avor of the admissibility of the declarations. He says : ��� �