Asa McKenzie, Adm'r vs. Hunt & Condry, 1 Port. 37

•By Mr. Chief-Justice Lipscomb : This was a trial of the right of property in the court be1* low. The defendants in error were plaintiffs in an execution against one Bripe M. Mayfield, and caused the execution to be levied on certain property in the possession of May-field, which was claimed by one Booker, as trustee, to whom it had been-sold by Mayfield, to secure a debt due from him ' to McKenzie, the plaintiff in error. By the deed of sale it was expressed, that the'property should remain in the possession of Mayfield, the vendor; for a stipulated time.

On the trial of the right of property, the plaintiffs in the execution, were permitted by the court, to givé in evidence the declarations of Mayfield, as to the ownership of the property, and that he had offered to séll a part of it after he had conveyed it to Booker; but that these declarations and offer to sell, were not known to the trustee Booker, nor to McKenzie, for whose use the property had been conveyed.

The court below, in admitting this testimony, charged the jury .that they might take it into their consideration, as circumstances slight in themselves, blit entitled to-such weight in whether the conveyance to Booker was fraudulent or not, as they might think proper to give it. The objections to this testimony are, that it is secondary — not by a party to the suit — and that the declarations were made by one who was ,a competent witness.

I am aware, that the practice of the courts authorises a great deal of latitude in the admission of testimony, where the question is on the fraud or fairness of the transaction; and I am inclined to the opinion, that under some circumstances, the declarations of the vendor, or his acts, would be admissible evidence to impeach the, fairness of the sale.

If these declarations were a part of the res gesta, and made whilst the sale was being made, or the offer to sell as his own property by the vendor after the contested sale, to the claimants of the property, had been given by way of impairing the credibility and weight of the vendors’ testimony ; it seemá to me that it would have been proper to admit it.

Mayfield was certainly a competent witness to prove the fairness of the sale he had made, and if the claimants of the property had introduced him for that purpose, it would have been the privilege of the plaintiffs in the execution to destroy his credibility, if in their power — and in doing so, it would have been competent for them to have proved that his acts and declarations were inconsistent with the truth of what he had sworn. In the case of Martin vs.

Kelly, this, court ruled, , , ■, , • „ , . „ J , that the declarations or the vendor after sale, could not be given in evidence to defeat the right of the purchaser. This is a case very much in point. We are of opinion, that although the testimony was admitted under great restriction and caution by the court,'the circumstances of the case did not render it admissible at all, and that it ought to have been rejected. The judgment must be reversed, and the cause remanded. 1 Stew. 198