
    CHANDLER & RAGLAND v. JOHN MARSHALL.
    (Filed 18 March, 1925.)
    Evidence — Declarations—Mortgages—Claim and Delivery — Res Gestae— Hearsay.
    Where, in claim and delivery for two mules by the mortgagor under an unregistered mortgage, the defendant claims as a purchaser from the deceased mortgagor, evidence by the plaintiff as to what the deceased mortgagor had subsequently said tending to establish the plaintiff’s claim is not part of the res gestee, and is incompetent as hearsay.
    
      Appeal by defendant from Horton, J., at August Term, 1924, of FRANKLIN.
    Civil action in claim and delivery, tried upon tbe following issues:
    “1. Are tbe plaintiffs, Chandler and Ragland, tHe owners and entitled to tbe possession of tbe two mules in controversy? Answer: ‘Yes.’
    “2. Wbat was tbe value of said mules at tbe time of tbe seizure in claim and delivery? Answer: ‘$75.00.’ ”
    Judgment on tbe verdict for plaintiffs, from wbicb tbe defendant appeals, assigning errors.
    
      Wm. H. and Thos. W. Ruffin for plaintiffs.
    
    
      W. M. Person for defendant.
    
   Stacy, C. J.

Tbis is an action in claim and delivery, instituted by plaintiffs to recover, as mortgagees or by virtue of an unregistered retained-title contract, tbe possession of a pair of mules, sold by plaintiffs to one George Burnett, now deceased. On tbe trial, defendant contended that be bad purchased tbe mules from George Burnett, for value and without notice of tbe plaintiffs’ lien, and gave evidence to tbis effect.

Over objection, tbe plaintiffs were allowed to offer tbe testimony of two witnesses, tending to show wbat George Burnett bad said to them on different occasions, and subsequent to tbe transaction, in regard to tbe alleged sale of tbe mules to tbe defendant. D. P. McKinne, a witness for tbe plaintiffs, testified to a conversation with tbe deceased in wbicb be was informed that tbe mules bad only been rented or hired to tbe defendant and that no sale of them bad been made. A like conversation was detailed by tbe widow of tbe deceased. Tbis evidence was incompetent as hearsay and should have been excluded. Barker v. Ins. Co., 163 N. C., 175; McCurry v. Purgason, 170 N. C., p. 466.

Speaking to a similar question in tbe case of Matthis v. Johnson, 180 N. C., p. 133, Walker, J., said: “The testimony of K. A. Robinson was properly excluded, because be proposed to speak solely of a statement, not only of a third person, but of a person who bad since died, wbicb wás made to him. Tbis was hearsay and incompetent, it having none of those safeguards required by tbe law for tbe maintenance of truth.”

And in Printing Co. v. Herbert, 137 N. C., 317, tbe bolding of tbe Court is quite accurately stated in tbe second head-note, as follows: “In an action to recover possession of a printing press sold by plaintiff by conditional sale, wbicb passed into tbe bands of a publishing company as an alleged innocent purchaser, declarations of tbe deceased buyer are inadmissible to show that be received value from tbe publishing company.” •

There was error in the admission of this evidence as above indicated. It was no more than statements, given by the witnesses, of what they profess to have heard the deceased say. This is not the kind of evidence to be sanctioned by our courts of justice, for the determination of the rights of litigants. Satterwhite v. Hicks, 44 N. C., 105; 22 C. J., 199. It could not be competent as a part of the res gestee; the conversations were had long after the alleged transaction. A new trial must be awarded; and it is so ordered.

New trial.  