Aрpellant, as the administrator of the estate of Oliver H. Brown, deceased, instituted this' action to recover upon promissory notes, and to foreclose a mortgage securing the same, exeсuted by appellee to the decedent.
The defence set up in the answer is, that subsequent to the execution of the notes, it was agreed between Brown, the payee, now deceased, and appellee, that he should board and furnish a home for Brown during his natural life, in full'satisfaction and paymеnt of the debt evidenced by the notes, and that appellee had kept and performed the contract on his part.
The notes and mortgage remained in the possession of the decedent until his dеath, and were found among his papers in his safe. Upon the trial of the cause- below, appеllee introduced several witnesses, who testified that in conversations which they had had with the decedent, he told them that he had agreed with appellee to give to him the notes and mortgage for furnishing him, Brown, a home during his life. In rebuttal, appellant offered to prove by certain named witnesses, then in court, that shortly before his death, and subsequent to the time of the agreement set up in the answer, the decedent stated to them, that he was holding the mortgage against appellee, and had fears that he, aрpellee, would cheat him out of it; that appellee’s wife had not signed the mortgage, and that he had fears that on account of a prior mortgage, he would not be able to make his mortgagе debt out of the land.
This offered evidence was excluded. Was it competent ? That is the only question disсussed by counsel, and the only question presented by the record, if, indeed, it is so presented, as that a decision of it favorable to appellant would require the reversal of the judgment.
There is an exception to that general rule, which is stated in the case of McConnell v. Hannah,
In the case of Creighton v. Hoppis,
In order that such declarations accompanying an act may be competent as a part of the res gestae, manifestly, the act itself must be material to the issue involved.
When there is a question of ownership, for example, it is competent tо prove possession, because possession is prima Jade evidence of ownership, and becausе possession is thus material, declarations accompanying it are competent.
In the case before us, there is no question as to the ownership of the notes and mortgage, while Brown, the payee, was alive. He was the owner, and entitled to the possession of them. That was in no way called in question by appellee. The only question for trial was, as to whether or not the agreement set up in the answer was entered into between the parties, and if so, whether or not appellee had performed his part of that agreement. If there was such an agreement, and appelleе had performed his part of it, the notes were paid. It
Those declarations would tend to overthrow the case as-made- by appellee’s answer and his witnesses, but as they did not accompany an act material to the issue to be tried, they were not a part of the res gestee, and hence not competent.. They were purely declarations of a party in his own favor in. the absence of the other party, and hencе fall within the general rule which excludes such evidence. In our judgment no error was committed in the exclusiоn of the proffered testimony. It is well enough to say in passing, that the record does not affirmatively show that the declarations which appellant offered to prove by-the witnesses named, were not proved by other witnesses.
Judgment affirmed, at appellant’s costs.