On Petition for a Rehearing.
McCabe, C. J.— Appellees’ counsel have presented a petition for a rehearing on the ground that we erred in holding that the evidence of the possession was immaterial under the issues, and that evidence of the declarations of Eliza Robbins while in possession.was incompetent. Counsel say “we think the court inadvertently fell into error in holding that the act of possession in the case at bar was immaterial. * * * It is argued (they say) that possession is only competent where it is inconsistent with the deed. The infirmity of this argument is that it assumes that Eliza Robbins had parted with her title, the very point in dispute, and the very point which the jury, in answer to interrogatories, decided against them. The authorities cited show what every one concedes, that after the grantor has parted with his title he may not disparage it by declarations in conflict with it. Thus assuming that Eliza Robbins had deeded her land away, they object to any declarations against the deed. The same argument would shut out all evidence on the subject, for if she had deeded her land away her title is gone, and that is the end of the matter.
“Mr. Justice Elliott, in the case of Creighton v. Hoppis, 99 Ind. 369, disposes of the same kind of fallacy. ‘If it were true, as counsel assert, that the appellees were not entitled to introduce evidence of acts and declarations *499until after they had fully proved that the instrument was a mortgage, there would be no need for. them for the case would be fully made out without them.’
“Counsel here attempts the same thing by arguing that until we prove that she never made the deed, we may not introduce her declarations. But then they would be useless, for that is the point in dispute, and when that is settled, any further evidence is superfluous.” Lét us see where the fallacy is.
The learned counsel in their argument against the reasoning of the original opinion have, in evident deference to the court, ascribed such reasoning to the counsel on the other side. Their real position is that our reasoning is to the effect that until the appellees prove that Eliza Robbins never made the deed in question they can not introduce her declarations concerning it in evidence. This plainly indicates that appellees’ position is that if they had proven that Eliza Robbins had never made the deed, her declarations concerning its non execution would be unquestionably admissible. And they complain because the original opinion would not let her declarations in until such proof be made.
The original opinion not only holds her declarations inadmissible up to that point, but it in effect holds that her declarations after proof that she had never executed the deed would be equally inadmissible. What right would appellees have to introduce the declarations of Eliza Robbins that she never executed the deed after the introduction of proof even conclusive, or the admission of the appellant that she never did execute the deed. Let it be conceded that she did not execute the deed; and by what authority of law, and on what legal principle then can her declarations to the effect that she did not execute such deed be introduced in evidence against the appellant who claims under such deed, and that she did *500execute it. If in fact she did not execute it, her declarations in relation thereto are nothing more than mere hearsay testimony, and not admissible.
Now when appellees offered her declarations in evidence, tending to prove the nonexecution of the deed against the appellant, what ground did they necessarily assume, to take such declarations out of the general rule excluding hearsay testimony?
It was that appellant was claiming to be the grantee of Eliza Robbins in the deed, and as long as he stood in court making that claim, having made proof of its execution so as to authorize its being put in evidence under the plea of non est factum, her declarations in disparagement of the title thereby claimed by him were admissible against him if made at the proper time, regardless of the ultimate fact whether the deed was or was not executed; because he, by putting the deed in evidence, and claiming under it, claimed that he was her successor in the title and her privy, and if so he would be bound by her acts and declarations affecting the title made prior to the time he claimed it came to him.
It was because of this claim of his that her declarations were admissible against him, and not because the deed had or had not in fact been made, and because he was estopped to deny that he was so claiming when her declarations were offered in evidence. All must readily admit that the declarations of Eliza Robbins, who was not a party to the suit, would be mere hearsay testimony and not admissible for either party unless brought within some exception to the general rule. 1 Greenl. Ev., sections 99, 100.
The learned counsel say that the infirmity of our argument in the original opinion against the admissibility of those declarations is that it assumes that she parted with her title, the very point in dispute. But it is the *501learned counsel that fall into error instead of this court. The original opinion does not assume that she parted with her title as a reason why her declarations made after the date of the deed were inadmissible, as appears from the foregoing.
Suppose we admit that the answer of non est factum started the parties into the trial with the presumption that the deed was never executed .at all. We have already seen that such presumption would not justify the admission of her declarations in disparagement of the title thereby purported to be conveyed, because the presumption is that no title has passed, no relation of grantor and grantee or privity exists between appellant and Eliza Robbins, so as to take the case out of the general rule excluding hearsay testimony.
It is only because the appellant assumed and claimed that the title had passed by the deed and claimed title under it and that the relation of grantor and grantee and consequent privity of estate were thereby created between them that the slightest right is created in the appellees to put in evidence the declarations of Eliza Robbins in disparagement of such claim of title.
Without that relation, s\ich declarations as before observed are mere hearsay evidence, not falling within any of the exceptions to the general rule excluding such mere hearsay evidence. The successful offer of such declarations in evidence is on the theory that the party offering them says to the party against whom they are offered: While I do not admit that the title passed by the deed you have put in evidence, yet you say it has, and claim under such deed, and while you claim under such deed you assert that the relation of grantor and grantee and privity of estate, are thereby created between you and the grantor, you are bound by the declarations of your assumed grantor, your assumed privy in estate, affecting *502the title you assume was conveyed thereby and you are estopped from denying the admissibility of such declarations precisely the same as if they were made by yourself.
In 1 Rice Ev., p. 424, it is said: “When by succession of title a party to a suit is so far in privity with another that he could be affected by his acts, then he can be affected by his admissions only when they are made during the latter’s interest in the subject-matter of the suit; for then only can he engraft them upon the interests so that they will follow it into the hands of his successor.”
As before observed, such admissions of the alleged grantor can only be put in evidence against the alleged grantee because he claims to be such grantee and successor in interest. If not admissible on that ground, then they are not admissible at all, because mere heresay evidence.
The law requires the court to hold, on the offer of such declarations (without assuming whether the deed was or was not made or whether the grantor had or had not parted with his title), that they are inadmissible unless made prior to the alleged conveyance. On the ground that if no conveyance in fact was ever made,, they are mere hearsay and not admissible at all, and if such conveyance was in fact made and the declarations were made thereafter 'they are inadmissible, because the grantor can do no act or say no word after he has parted with his title to injuriously affect it.
Counsel for appellees say: “Thus assuming that Eliza Robbins had deeded her land away, they object to any declarations against the deed. The same argument would shut out all evidence on the subject; for if she had deeded her land away, her title is gone and that is the end of the matter.”
*503We have already shown that we did not and do not assume that she had deeded her land away, but that appellees call to their aid the appellant’s assumption and claim, that she had so deeded her land away in order to enable them to put in evidence her declarations in disparagement of the title so claimed to be conveyed. If they did not call to their aid such assumption, then it is because they openly confess that her declarations were not admissible. Instead of counsel being correct in saying our argument would shut out all evidence, the direct contrary is true. Moreover, their argument would result in admitting in evidence the declarations of an alleged grantor in every instance in disparagement of his alleged grant after its alleged execution. Because they say that the rule is as every one concedes, that after the grantor has parted with his title he may not disparage it by declarations in conflict with it. But they say the very point in dispute was whether Eliza Robbins had parted with her title. The epitome of their argument is, that so long as that point was in dispute her declarations in disparagement of or in conflict with the deed were admissible in evidence. Necessarily, in all cases we can conceive of, that point would remain in dispute until the finding of the court is announced or the verdict of the jury is returned. That tides the case over the trial and leaves no case at all in which the declarations of the alleged grantor in disparagement of the title he is alleged to have parted with can be excluded. In short, it abolishes the rule in toto, that counsel so generously admit that every one concedes to be established, and establishes a new and contrary one, namely, that in all cases the declarations of an alleged grantor, made after the date of his alleged grant, are admissible in evidence against one claiming under such deed so long as the party offering such declarations disputes the *504deed. Under this proposed new rule, no such thing as the exclusion of such declarations can ever take place; they would all be admissible against the one claiming under such grant or deed, unless the party offering them would kindly rise up in court and admit that the deed had in fact been made and that the grantor had parted with his title before the offered declarations had been made. It must be confessed that this would be a very convenient rule to meet the necessities of the appellees' contention in this case.
But the misfortune about it for the appellees is that no court of last resort from the year books down to the present time ever declared such a rule to be law, but from that time to this all courts of last resort where the question has arisen have declared the very reverse.
We do not hold that declarations of a life tenant in possession are inconsistent with such possession and inadmissible, but we do hold that no such question is presented.
The contention amounts to this, that unless the party offering such declarations will kindly admit the very point in dispute against himself, such declarations are admissible. And then what difference would it make whether they were admitted or excluded? None, because he has admitted' his entire case away. The time may come when “the wolf also shall dwell with the lamb, and the leopard shall lie down with the kid; and the calf and the young lion and the failing together; and a little child shall lead them” (Isaiah xi, 6), and be real friendly and sociable with each other, and the millenium may come, but it is safe to say these things will not be of frequent occurrence. So it is safe to assume that the party who offers such declarations in evidence will as rarely be found admitting his whole case away in order that his offered evidence may be rejected as that the other occurrences mentioned may take place.
*505In short, the contention if followed would sweep away the settled law that the declarations of the grantor named in a deed can not be admitted in evidence against one claiming under such deed if made prior to the time of its alleged execution. Besides, the question was virtually decided against appellees, contention when the case was here before the first time. Spencer v. Robbins, 106 Ind. 580.
There is another exception to the general rule excluding mere hearsay evidence, and that is where the declaration or statement offered, though mere hearsay, is a part of the res gestee, 1 Greenl. Ev., section 108. It was insisted that the declarations of Eliza Robbins in question were admissible on this ground, being a part of her act of possession, and therefore a part of the res gestos. Counsel for appellees say: “But it is argued by the court, that as her possession is not inconsistent with the deed, it is immaterial. If she made the deed she was still entitled to possession; if she did not make the deed she was entitled to it. This (counsel say) is a very plausible fallacy. But its fallacy will become apparent when we reflect that it assumes the very fact in controversy.” That sort of logic has the merit of originality if nothing else. To argue that Eliza Robbins’ possession was not a fact material to the issue whether the deed was made or not, because if she made the deed she was entitled to possession, and if she did not make it she was still entitled to possession, we are gravely told, assumes the very fact in controversy; that is, we are told with apparent candor that the act of conceding that the fact may be either one of two ways, is an assumption that is only one of the two ways. It is needless to say that this sort of logic does not impress us very favorably.
In the original opinion, we showed that this court had held both times when the case was here before that the *506deed reserved a life estate in Eliza Robbins under which she was entitled to the exclusive possession during her life. The appellant by claiming under such deed admitted her legal right to possession during her life, and that she was the absolute owner in fee if the deed in question was not good. So that the whole entire controversy was whether that deed had been duly executed. Her possession during life was not, therefore, a fact material to that controversy. And we showed, by abundant authority in the original opinion, that declarations not accompanying an act or possession material to the controversy are not admissible in evidence.
The petition for a rehearing is overruled.
Filed April 9, 1895.