The opinion
Smith, C. J.
Dissenting.
I do not concur in the opinion of the court as to the admissibility of the declarations of James Hilliard that he made the deed to his brother to prevent the land from being sold for his debts. The declaration does not qualify or explain the possession, nor disparage declarant’s title, but is received as evidence of a preexisting fact to impeach the validity and effect of his own act in conveying title. Its incompeiency for such purpose, is, in my opinion, fully established by the authorities. 1 Greenl. Ev., §§ 109, 110; Ward v. Saunders, 6 Ire., 382; Wise v. Wheeler, Ibid., 196; Hodges v. Spicer, 79 N. C., 223 ; Burbank v. Wiley, Ibid., 501. In all these cases, except the first, the declarations of the party in possession who had made the conveyance, were offered as evidence of fraudulent intent, and ruled out. In Wise v. Wheeler, the declarations were made, as an examination of the record shows, after the execution and not before as erroneously stated in the report.
Per Curiam, no error. Affirmed.