
    David Clarke versus Jacob Waite.
    The declarations of a grantor are not to be given in evidence, to defeat his deed.
    *This was an action of trespass guare clausum fregit, [*439] in which the general issue was pleaded and joined.
    At the trial of this issue, before Jackson, J., April term, 1814, • the defendant relied on a title in himself' to the place where tho trespass was alleged to have been committed.
    It appeared that one William Clarke formerly owned the premises in question, and that he executed a deed for the conveyance thereof to the plaintiff, his son, bearing date on the 9th of March, 1810, acknowledged and registered on the same day.
    The defendant contended that this was a fraudulent conveyance, and he claimed the premises by virtue of an execution in his favor, against the said William Clarke, which was levied on said premises. The defendant had caused the premises to be attached, in his suit against William Clarke, on the 9th of March, 1811, and his said execution was levied thereon on the 5th of July, 1811.
    The defendant produced evidence tending to prove the said conveyance fraudulent, and the plaintiff produced evidence tending to prove that it was made bona fide, and for a valuable consideration , all which was left to the jury, who returned a verdict for the plaintiff.
    The defendant, in the course of the trial, offered to prove by a witness on the stand, that the said William Clarke, who died before the trial, offered to sell the premises to the witness in the summer of 1810. He also offered to prove the conversation and declarations of the said William at different times before and after the said conveyance, to prove that the same was fraudulent as against the creditors of the said William. But, as it did not appear that the plaintiff was present on any of the said occasions, or had any knowledge of the said declarations of the sa'd William, the said evidence was objected to by the plaintiff, and rejected by the judge. [*440] * The defendant moved for a new trial on account of the rejection rejection of the said evidence.
    This motion was argued at the last September term in this county, by Lincoln, for the plaintiff, and Blake, for the defendant.
    The cause standing continued nisi for advisement, the opinion of the Court was pronounced, at the November term, in Essex, the present year, by
   Putnam, J.

The question in this case is, whether the declarations of a grantor, made before and after his deed, are to be admitted as evidence against the grantee, he not having been present, to prove the deed fraudulent, the grantor being dead. If such evidence ii admissible, the defendant ought to have a new trial on account of its rejection ; otherwise, the verdict is to stand.

It has been contended for the defendant, on the authority of Hill vs. Payson, that the grantor, if living, would be a legal witness. In that case the grantee was admitted ; the Court observing, that the common law principle had not been carried farther than to exclude a witness from testifying, to invalidate a security to which he had given credit by his signature. This rule has since been restrained to negotiable paper.

In the other case cited and relied upon by the defendant, the question to be tried was, when W. F. was born. To prove that fact, the entry of the physician who attended at the birth was admitted ; it appearing that he was dead, and that the charge was marked as paid. In such case the physician would have been a competent witness.

But the case of Bartlet vs. Delprat, cited in the argument, is decisive in this action. There the Court determined that the declarations of a supposed grantor are not to be received after his death, as evidence against the party claiming under the deed.

If a grantor, after having received a consideration for bis land, could be permitted to defeat his own grant, so that his creditor might levy on the same estate, he would reap the fruits of his [*441] own iniquity, and might do great injustice to an * innocent grantee. Upon the reason of the thing, as well as on authority, we are all of opinion that the evidence in the case at bar was properly rejected. Judgment according to the verdict. 
      
       3 Mass. Rep. 560.
     
      
      
        Churchill vs. Suter, 4 Mass. Rep. 156.
     
      
      
        Hingham vs. Ridgway, 10 East, 122.
     
      
       4 Mass, Rep. 707.
     
      
      
        Bridge vs. Eggleston, 14 Mass. Rep. 245. — Phillips vs. Earner, 2 Esp. 357.— Penn vs. Scholey, 5 Esp. 243. — Jackson vs. Sherman, 6 Johns 19. — Jackson vs. Bond, 4 Johns. 230. — Jackson vs. Donald, 10 Johns. 377. — Phenix vs. Ingraham, 5 Johns. 412, — Frear vs. Everton, 20 Johns. 142. — Dorsey vs. Dorsey’s Heirs, 3 H. & J. 426. — Arnold vs. Bell, 1 Hayw. 397. — Denn vs Mountjoy, 2 Hals 173. — Hurd vs. West, 7 Cowen, 752 — Austin vs. Sawyer, 9 Cowen, 39.
     