(concurring). I concur with the.views of my brother Graves, and propose only to add a few suggestions on the principal question on the record.
I do not understand that declarations in regard to title- are any more admissible concerning boundaries than upon any other matter relating to the declarant’s rights. Public boundaries may be shown by hearsay in some cases, but there is no such rule as to private boundaries; and the cases where such testimony has been received are shown by Mr. Greenleaf to rest on the ground that they are declarations of a party interested, limiting his rights. See note to § 145, 1 Greenl. Ev. And in § 189 he gives several familiar instances of declarations by former owners or occupants of land which have been regarded as competent to bind their successors in the title. These declarations will be found to extend to title as well as to boundary, and to reach incorporeal as well as corporeal rights. Such testimony has been received in several cases in regard to tithe Compositions. *324De Whelpdale v. Milburn, 5 Price, 485; Maddison v. Nuttall, 6 Bing., 226. The valuable notes of Cowen and Hill to Phillips’ Evidence have collected in note 104 a numerous list of authorities on this subject and deduced with much clearness the reasons why such testimony should not be regarded even as exceptional. Their reasoning is so satisfactory that Mr. Justice Bronson in deciding a case relating to personal property declares himself so impressed by it that he is unable to see why the same rule should not be applied in New York to that; and plainly says the precedents in that State compel him to hold otherwise against his judgment. Beach v. Wise, 1 Hill, 612. As to real estate, the New York courts have applied the rule precisely as it is involved in the ease before us. In Jackson v. Bard, 4 Johns., 230, the controversy mainly turned upon the date at which a deed became operative,, and the declarations of a former owner were held proper evidence against all claiming under him. And in Jackson v. Myers, 11 Wend., 533, the evidence was also of declarations of a party in possession to defeat a deed. The language of Savage, C. J., is very instructive, and in my judgment puts the doctrine on a simple and plain ground. He says: “ The doctrine that parol declarations shall not be received to divest a legal title, is not applicable in this case. Such declarations cannot be received to divest an estate already shown to have vested, or when it is shown that there is higher evidence. The. object here was to show that no title vested; that the instrument which purported to convey the estate was void. It is always competent to show that a deed was delivered as an escrow, or that it was obtained by fraud. There can be no doubt that it might be shown by any competent witness who knew the fact, that a deed was obtained by imposition or by force, duress, or that it was executed for the express purpose of defrauding the creditors of the grantor. How can such evidence be given but by parol? By persons who were present at the concoction of the fraud, and knew the facts and the *325declared intents of the parties when the deed was executed. If these facts could be proved by parol, by indifferent persons, why not prove them by the admissions of the parties ? Had the subscribing witnesses been produced who had heard Miller make similar declarations to those made to Pitcher, there could have been no good objection to it on the ground of its being parol evidence. If that objection were to prevail in such a ease, a deed could seldom be proved fraudulent.”
This language is peeularly applicable here. A deed is shown which is dated back beyond the levy of an attachment, but which was not recorded until Borne time thereafter. The date of its delivery is very material, because if delivered after the levy to a purchaser with notice, the fraud would be clear. The delivery can only be effectively proved in advance of the registry by parol. The registry itself is not absolute proof of delivery, and is no proof whatever of any particular date of delivery. The delivery is as necessary a part of the contract of sale as the deed itself, and it is a part of the contract always open to parol evidence. All other parol contracts may be shown against parties by their admissions, and there is no ground for making this an exception.
It cannot be doubted that whether a person is a purchaser of lands with notice, is always open to parol evidence, and always provable by his admissions before he has ceased to be interested. Even the possession of an absolute deed with such notice is of no avail unless payment was made before notice. I cannot persuade myself that such testimony as was rejected in this cause is even exceptional. It is precisely such as is received in most cases of fraudulent transactions; The policy of the registration laws cannot in any way interfere with the proof of facts which are material and which can under no circumstances appear of record.
As it has been suggested by the courts in some of the cases referred to by the writers on this subject, the effect of such testimony as against á bona fide purchaser *326is not at all material in determining its admissibility. No one but a bona fide purchaser without notice can avoid its force. Whether a claimant is a bona fide purchaser is to be decided by the jury when all the testimony is in, and not by the court in advance. This record certainly makes out no conclusive case of such a purchase. The record of the deed was subsequent to the date of the levy, and the record of the execution sale was made many years before the plaintiff in error purchased. How he purchased and on what consideration does not appear, and does not concern this discussion. If the first grantee was mala fide, the second one had the burden of showing why he should not take a damaged title. • As there are no exceptional rules relating to his own rights which could prevent the jury from examining them, we must assume that he made out no such case as would necessarily put him in any better position than his father who was his grantor.