The plaintiff claims tittle to the premises demanded, by the levy of an execution upon it, as being the estate of Nathan Swan; and the defendant, by a mortgage deed, from the said Nathan, dated the 8th day of January, 1821. This deed, it is insisted, by the plaintiff, was fraudulent, having been executed, by the grantor, for the purpose of defeating creditors of their just debts. Whether the above deed was fraudulent, is the material question in the case.
On the 15th of July, 1820, Nathan Swan, being largely indebted, having received from his son, the defendant, a bond and mortgage, conditioned to pay his debts, to support him and his wife, and an infirm child, during their lives, and to pay certain *144sums to other children, executed to the defendant a deed of all his real estate. Having paid fifteen hundred dollars, which exceeded, by a third, all the debts of the said Nathan, as he had represented them, and discovering that the demands still out standing, were fifteen hundred dollars more, the defendant applied to his father, for a rescission of their contract; and it was rescinded accordingly. These facts appearing on the motion, do not evince a fraud on creditors; or if in this is their character, it is of no importance in this case. The fraud, if any, was vacated, by the parties, and every tiling put in statu quo; nor can an inference be deduced from them, that a fraud exists, in a contract made in the year 1821, because an agreement, entered into six months before, was fraudulent. Clark v. Johnson, 5 Day, 379. This transaction, and the release to the defendant, by Nathan Swan, in November, 1820, of his right and title to an hundred and sixty acres of land, part of the land which was mortgaged, to secure the fulfilment of the bond aforesaid, (which land was reconveyed to the grantor, at the rescission of the contract, as before-mentioned,) have no bearing on the question of fraud, arising on a posterior proceeding. It was prior, distinct from, and wholly unconnected with, the matter now in question; and the leaven, if any existed, had been purged, by the voluntary act of the parties.
The evidence offered to prove, that the defendant was a young man, when he received the deed from his father, destitute of capital, a few years before, and hence, not of ability to make the advancements claimed, was rightly repelled by the court. Such an enquiry would be remote, interminable, the basis only of conjecture, and leading to no correct inference. The ways of getting, as well as of losing property, are infinite.
Having disposed of these objections to the judgment below, I am brought to a consideration of the only material point of enquiry. The defendant claims, as the consideration of the deed of January, 1821, now in question, that he had paid his father’s debts, to the amount of 3,035 dollars. The plaintiff having exhibited evidence, tending to prove, that when said deed was given, Nathan Swan did not owe his son, the sum claimed by him; that all his personal estate had been transferred to the defendant; and that other large sums had been received by him, and neither credited, nor accounted for, particularly a sum of money, of one John Wheeler; the said Cyrus takes on himself, the refutation of this testimony. He claimed, that all the above sums of money had been duly accounted, for by *145having been credited in a settlement made with his father. In proof of this position, he offered in court his books, purporting to be settled and signed by the parties; to the admission of which, the plaintiff objected, and the court disallowed the testimony. That this account did not purport a settlement, made before the execution of the deed under enquiry, was not a question in the court below; and ought not, for the first time, to be questioned here. Besides, from the testimony of Tift and others, which will, by and by, more particularly be adverted to, there is a reasonable presumption, that the account between the parties was settled. The books, in my opinion, ought to have been admitted in evidence, and the jury left to determine upon the settlement of the parties, and the fairness of the transaction. The plaintiff, however, on whose objections the evidence was repelled, cannot be allowed a new trial, upon this ground, as the determination was in his favour.
Having failed in the proposed exhibition of his books, the defendant next offered to prove a settlement of the accounts between him and his father, in a different manner. This part of the statement, comprising the most material controversy in the case, I will give in the words of the motion. “ The defendant, then, to shew, that the accounts between the parties, before said note and mortgage were executed, had been settled, offered Tift and others, to prove, that previous to the execution of said mortgage deed, the said Nathan, the grantor, had said, in the presence of witnesses, that more than 3000 dollars was due from him to Cyrus ; and did claim, that inasmuch as the said Nathan had executed a deed with covenants of warranty, and so could not be a witness, his declarations made before the execution of said note and deed, were, in relation to said settlement, admissible evidence; but the defendant did not offer the said Nathan as a witness.” The offered evidence was correctly adjudged, by the court, to be inadmissible. Nathan Swan was a legal witness, as the validity of his covenant was not involved, in the question of fraud under discussion. Giddings v. Canfield, 4 Conn. Rep. 482. And the declarations by him made, anterior to the deed, were mere hearsay, and not competent evidence. Bridge v. Eggleston, 14 Mass. Rep. 245.
In this opinion, I understand the court to be unanimous.
The motion then proceeds, and states, “ that the court admitted witnesses, to testify what was said by Nathan, the father and grantor, before the execution of the deed, in relation to that settlement, in the presence of the son, and while apparently in *146the act of settlement, with the books before them; and what was said by him, in presence of his son, on the result, as he then slated. The witnesses swore, that the said Nathan and Cyrus were together, on the evening of the 7th and morning of the 8th of January, 1821, before the execution of said deed of mortgage, engaged in the examination of accounts, as appeared to therm with a book or books of accounts before them. Whether Nathan any account book, they could not say; but they continued to be employed in this business, until late in the evening, when the witnesses retired, and on return, in the morning, found them apparently in the same employment, with account books before them; that soon after, they appeared to have closed their business; and Nathan, the father, said, “ We have settled, and I owe Cyrus over 3000 dollars.” This testimony was objected to, but was admitted. It becomes necessary to ascertain, precisely, the nature and effect of the preceding declaration made by Nathan Swan; and to accomplish this, I am aware but of one mode, and that is, to construe the motion pursuant to the popular signification of its terms, taking them all to form an united whole. It has been urged, that the declaration made by Nathan Swan, was the result of the settlement,—the concluding act, ascertaining merely the state of the indebtedness. If this observation is supported by the motion, I think the admission of the evidence, was free from exception. (Knowles & al. v. Michel & al. 13 East 249.) But I consider it as not warranted by the facts stated. The parties had been comparing their accounts; and, as the witnesses testify, “ soon after they appeared to have closed the business, Nathan, the father, said “ we have settled, and I owe Cyrus over 3000 dollars.” Now, this was not the final act of a settlement, striking a balance, for several reasons. In the first place, the settlement had been made before, and “ the business closed.” Secondly, the declaration was made soon after the settlement; from the indefiniteness of which phraseology, it is clear, that it might have been, ten, twenty or thirty minutes subsequent, all of which facts would be consistent with the testimony. But it is sufficient to say, that the witnesses assert it to have been after. Thirdly, the expression “ we have settled,” is not only gramatically, but according to the usual forms of speech, the declaration of an anterior event. And what is conclusive; the words of Nathan could not be the result of the settlement, which, undoubtedly, was as certain as figures could make it, but the declaration of an antecedent result; for the balance ascertain*147ed is not given. The expression, that the sum due was over 3000 dollars, decisively evinces, that the speaker was giving information of a preceding event, which had been reduced to perfect certainty, but of which, giving information to those around him, he thought it unnecessary to be precisely particular. And in addition, it may be remarked, that where accounts are compared and adjusted, the state of them appears upon their face; and the promulgation of the result orally, except information of a preexisting fact, is contradictory to all good sense and experience. If then the words of Nathan Swan, were after the settlement, it is immaterial, whether the period were longer or shorter; the legal result must be the same.
It has been contended, that the declaration, on which I am commenting, is part of the res gesta; and, therefore, admissible. I enquire of what res gesta? Or, to speak in plain English, of what thing done ? The reply must be, of the settlement of accounts; and to this a sufficient answer has already been given. I insist, that the res gesta, or the settlement, was entirely anterior to the anouncement of it, in general terms, by one of the parties. Where it is necessary to enquire into the nature of a particular act, and the intention of the person who did the act, what the person said, at the time of doing it, is admissible evidence, for the purpose of showing its true character; and this is the meaning of the expression part of the res gesta. 1 Phil. Ev. 201. Thus, the declarations of a bankrupt, at the time of absenting himself, are received in evidence, to show the motive of his absence; and the expressions of a person, who extends his hand to another, with money in it, to evince, that it was a tender. But the character of a settlement is known from an inspection of the accounts stated, and not from the posterior declaration of one of the parties.
The result, to which my mind is inevitably impelled, in this case, is, that a settlement had been accomplished, and was announced, by Nathan Swan, not as being the result, necessary to be made known, or as having any connexion with the act done, but merely because it was Iris pleasure to give the information. I admit, that motions are not to be construed like special pleading; but when they give the words, or the force of testimony, they must receive the same exposition, as the words would be subject to, if spoken; and this rule being rejected, the motion is not construed at all.
It has been said, that an insimul computasset might be sustained on the declaration of Nathan; and, undoubtedly, it might, *148even if the expression had been a year subsequent to the settlement. But this remark has no force, when the objection of hearsay, is made, by a third person; and the suit is neither for nor against the party speaking. My brethren see the subject in a different light; and, perhaps, with more correctness, than I have done; but prompted by every wish to harmonize with them, on this subject, my mind is strongly opposed to such a result. The proceeding between the father and son, has too much the appearance of an endeavour to secure his property, in trust, for the benefit of his declining years; and this appearance is not changed for the better, by his not having been produced as a witness. He could have given certainty, to what is now matter of doubt, by testifying to a settlement, if one existed, and of the items, which composed it. I am unwilling to receive evidence, which, at best, is of an inferior kind, and liable to great exceptions, when the best evidence of which the case admits, is within the defendant’s power, and not produced.
I would grant a new trial.