The opinion
Wood, J., (after stating the facts). The sole issue was the ownership of the property. Appellant offered to prove that Atherton, after the day of the alleged .sale and delivery, claimed the mule as his own, fixed a price upon her, and offered a number of times to sell her. This testimony was rejected, and the ruling of the court in that regard is the only question for our consideration.
The general rule that the declarations of the grantor cannot be admitted to impeach the title of the grantee is well understood, and has been recognized by this court in a number of cases. Gullett v. Lamberton, 6 Ark. 109 ; Brown v. Wright, 17 id. 9; Clinton v. Estes, 20 id. 216; Finn v. Hempstead, 24 id. 111; Smith v. Hamlet, 43 id. 321. But where there has been no change of possession, and the transfer is alleged or shown to be fraudulent, or where there is such doubt of the delivery of the property as would justify a jury in saying there was no completed sale, in such cases the after-declaration's of the vendor in possession are admissible. These are well settled exceptions to the general rule. See Bowden v. Spellman, ante, p. 251, and authorities there cited (where fraud was charged and shown). See also Pier v. Duff, 63 Pa. St. 63, where it is said : “The possession is a fact, and how it is held is a fact, and this may be shown on the same grounds upon which mere hearsay is permitted, when it forms a part of t-he res gestee.” Helfrich v. Stern, 5 Pa. St. 143; 1 Greenleaf, Ev. sec. 109; 2 Whart. Ev. sec. 1166.
The testimony offered tended to characterize the transaction between appellee and Atherton. It was material to the issue. Its rejection was prejudicial to appellant, and for this error he is entitled to have the judgment reversed and cause remanded. So ordered.
Hughes, J., dissents.