The opinion of the Court was delivered by
Willard, A. J.The question in this case is whether the declarations of a vendor of land, remaining in possession after a conveyance thereof, are competent evidence against the vendor in an action by a third party impeaching such conveyance for fraud. The mere question of competency is all that is presented. If, then, it appears that the evidence admitted is either sufficient in itself to support any material averment, pertinent to the issue, or appears to constitute part of a chain of facts material for such purpose, the evidence was properly admitted.
It was certainly material to the question to show that after conveyance the vendor continued to assert ownership, and that the vendee assented to such assertion. The first of these facts, namely, the assertion of continued ownership on the part of the vendor, could properly be shown by his declarations accompanying his possession of the laud. The right of the plaintiff to introduce these declarations did not depend on ability to connect the vendee with such assertion, for the proof of assertion is the foundation on which the proof of acquiesence would ordinarily rest. Kittles vs. Kittles, 4 Rich., 422, and Renwick vs. Renwick, 9 Rich., 50, do not conflict with this view. The question considered in these cases was whether the declarations of a vendor, after parting with possession, are admissible to impeach his deed. It is true that these cases speak of declarations after conveyance, and do not distinctly mention the *580fact of a transfer of possession, but as continued possession was not alluded to, it is evident that the Court used the expression conveyance as including a transfer of possession.
In the present case, the declaration must be regarded as forming part of the res gestee, for the allegation of fraud covered not only tho act of conveyance, but the whole time of fraudulent holding under the cover of such conveyance. Although a fraudulent intent, as affecting parties united in interest, cannot be established by proof of a fraudulent intent on the part of one of the parties alone, yet the fraudulent intent of each may be the subject of separate proof. The statement that the deed was intended to defraud creditors is not simply a declaration as to the intent of a past transaction, but is to be regarded as a declaration concerning the right by which the vendor held the land at the time of making such declaration, and, as the declaration of a present intent and purpose, is within the reason of the rule as to proof of the res gestee.
Wright, A. J., concurred. Moses, C. J., absent at the hearing.