(dissenting.) I think that the evidence of the notary public was admissible as part of the res geste, and explanatory of the giving of the deed. I do not find any particular conflict as to the rule applicable to the admission of declaration made at the time of the doing of the act. The difficulty or disagreement occurs in applying the rule to the declarations in each case. Much diversity exists in applying the rule as to declarations made or as to acts done under the same or similar circumstances. The rule in civil cases is clearly stated in Elliott ón Evidence, an excellent and practical treatise on that subject, as follows: “As already shown, the term 'res gestae’ is applied somewhat indefinitely to various classes of cases; but, generally speaking, the doctrine involves the admissibiity of the principal fact, and the propriety of characterizing or explaining it, and the connection of the declaration with it so as to illustrate, elucidate, or explain it. A typical case therefore is that in which the act or conduct in question is equivocal and in itself has no definite and certain legal significance, without showing the entire transaction or _ circumstances, but which can be made definite, characterized or given a legal significance, by words accompanying the act or conduct, and so connected with it as to constitute’ a part of the transaction. The words in such a case are used and admitted as characterizing or elucidating the principal fact, and not as evidence of the truth of the assertion • they make as an independent matter.” Volume 1, section 522. Another author lays down the rule in the following language: “In questions of fraud or bona fides, an adequate judgment can in general only be formed by having á perfect view of the whole transaction, and this includes the conversation which forms a part of it. The language which, is *201used on any occasion forms a part of the res gestae. The declarations and acts of the debtor made before-the transfer and contemporaneous • with it are admissible. They are admissible evidence in favor of the grantee as well as of the creditor. The acts or declarations of .the grantee which accompany the transfer stand on the same footing as those of the debtor. So far as acts and declarations of the parties form a part of and assist in giving character to the transaction, they constitute a part of the res gestae, and are competent evidence.” ■ Bump on Fraudulent Conveyances (4th Ed.) section 593.
If the declarations in this case had been made after the transaction had been completed, they would have been hearsay, and not admissible; but there' are some exceptions to the rule in regard to such declarations, and under such exceptions they are not deemed to be hearsay evidence. If the declarations are made as part of the res gestae, they are not hearsay, although they were made in the absence of one of the parties to the litigation. Declarations made while the transactions are in process of completion are admissible whether they are in favor of, or adverse to, the interests of the declarants. When the statement in this case was made, the agreement, if any had ever been made, had not been completed. If any promises had previously been made, they were still unexecuted. The statement was therefore explanatory, to a certain extent, of the contemplated execution of the deed. It was not therefore a narration of a past event or agreement, but pertained to the act which was then being done. It tended to characterize the act of executing the deed. I do not. disagree with much that is stated in the majority opinion. I reach a different conclusion on the application of the principles therein stated to the declarations in this case. I think that 'the declaration was made contemporaneously with the making of the deed, and become, in effect, a part of the transaction. If that is true, the declarations were admissible, although they might have been, in reality, self-serving declarations and intended to bolster up a fraudulent scheme. That fact would go to the weight, and not to the competency, of the evidence.
I fail to see that it is material whether the principal, or main fact — the res gestae — be deemed the drawing, signing, or acknowledging of the deed, or the good faith of the consideration, as declared in the majority opinion. Whether the good faith of the act *202of delivering the deed or the good faith of the consideration be the res gestae, the grantors declared, in reference thereto, that the deed was being drawn for a valuable consideration,' and this declaration was made before it became a closed or past transaction. It was the validity and good faith of the deed that was being contested. The deed was in evidence, arid expressed equivocally only, what the consideration was. To show fully the nature of the transaction, this declaration was competent, as explanatory thereof and as a part thereof, having been made while the deed was being executed. In attempting to make a rule that it must appear that the declarations were made under such solemn circumstances that a substitute for an oath and for cross-examination is furnished, the opinion would bar the admission of all such declarations in contract matters. In contract matters such declarations are admissible if made as a part of the transaction and while it was going on, and it is the presence of this fact that is deemed of sufficient significance as part of the litigated act to render the declarations admissible without having been made under oath or subject to cross-examination. The following authorities are in point as to the competency of such evidence: 24 Am. & Eng. Enc. Law (2d Ed.) 662, and cases cited; Kenney v. Phillipy, 91 Ind. 511; Bushnell v. Wood, 85 Ill. 88; Kent v. Harcourt, 33 Barb. (N. Y.) 491; Jones on Evidence, section 236; Elliott v. Stoddard, 98 Mass. 145; Bergman v. Twilight, 10 Or. 337; Boyden v. Moore, 11 Pick. (Mass.) 363; Hart v. Newton, 48 Mich. 401, 12 N. W. 508; Woolery v. Woolery, 29 Ind. 249, 95 Am. Dec. 629.
(123 N. W. 830.)It is apparent to me that the majority opinion is grounded upon a notion that the judgment appealed from is based on a fraudulent scheme. The fact that the trial court refused to set the verdict aside on a motion for a new trial ought to set that notion at rest. If the trial judge erred, however, in refusing to set the verdict aside, the judgment should be reversed on that ground, arid not by refinements in attempting to avoid a plain and well-established rule of evidence.
The judgment should be affirmed.