The opinion
On Petition fob a Reheabing.
Elliott, J. —
In the argument of appellant’s counsel, on the petition for a rehearing, is this quotation: “ The admissions of a party are evidence against himself, whether made in connection with an act done or not, but a party can not, as a general rule, prove his own statements as evidence for himself.” Scobey v. Armington, 5 Ind. 514 ; Denman v. McMahin, 37 Ind. 241 . Many authorities are cited in support of this statement of the law. The work of counsel was entirely superfluous, for we stated this general rule in our former opinion quite as broadly as any case cited by counsel states it. In no particular did we impugn the correctness of this general principle. What we did decide is that where a *374 grantor is in possession, and does acts while in possession evidencing ownership, his declarations accompanying and connected with those acts are competent evidence. We put our decision upon the ground that where an act is itself competent, so also are the declarations made at the time it was performed. In doing this we opened no new path, but followed one long since laid out and trodden by many courts. Not one of the many cases now cited by counsel controverts this doctrine.
Possession is an act indicative of ownership, and acts done while in possession evidencing ownership are competent, and the rule is a universal one that where the acts are competent evidence, so also are declarations made while performing them. Of course, the declarations of a grantor, not made while in possession or while engaged in the performance of an act, are not competent in impeachment of his grantee’s title. It is true that the deed of the appellees’ deceased ancestor prima facie conveyed full title, because it was absolute on its face; Pierson v. Doe, 2 Ind. 123 . But it is equally true that such a deed may be shown to be a mortgage, and one fact tending to show this is that the grantor retained possession. Counsel concede this to be true, but assert that the rule applies only where the possession is adverse. In thus limiting the rule counsel are in error. Possession by the grantor is an act tending to show ownership, and, as such, is competent; therefore, the declarations accompanying acts explaining and exhibiting the principal act of possession are also competent. We do not deem it necessary to again comment upon the authorities cited in our former opinion, for they are there fully discussed.
The case of Doe v. Moore, 4 Blackf. 445 ( 30 Am. Dec. 666 ), belongs to an entirely different class. There the declarations sought to be introduced in evidence were not accompanied by an act evidencing ownership, but were statements rehearsing'a past transaction. The difference between that case and this is essential. In that case there was no act accompanying the. *375 declarations, and they merely recited a past occurrence, while here the declarations accompanied an act, and were not mere narratives of past occurrences. Both acts and declarations were things of the then present, and not things of the past.
Filed Jan. 7, 1885.
It can not be granted that the appellees could not be permitted to prove these acts and declarations until they had established the fact that the instrument was in truth a mort-. gage, for it was enough that there was evidence tending to show that fact. When such evidence was introduced, then the appellees had a right to strengthen it by evidence of their ancestor’s acts and concurrent declarations. If it were true, .as counsel assert, that the appellee was not entitled to introduce evidence of acts and declarations until after they had fully proved that the instrument was a mortgage, there would be no need for them, for the case would be fully made out without them. We need not decide what the rule would be, if the instrument were conceded to be an absolute deed, for the case before us belongs to a class which forms a bold exception to the general rule that a written instrument can not be contradicted by parol evidence.
Petition overruled.