I concur in the judgment. It is objected that there was no proof of the terms of the parol contract by which the deed absolute on its face is converted into a mortgage. But admissions against interest made by the deceased, if satisfactorily proved and sufficiently definite and clear as to its terms, would suffice. Admissions were proven, which, with proof of the amount of the indebtedness, show well enough the terms of the contract. I do not agree that because the plaintiff offered to prove such fact by incompetent evidence — his own testimony — and defendant objected to that testimony, he is estopped from making the point. The objection was, that there was no proof of an essential fact. The plaintiff offered incompetent evidence of such fact. Defendant had a right to object to such evidence.
As to the fourth point discussed, I do not agree that the jury may be presumed to have considered the answer of the witness to a question to which an objection was subsequently sustained. The jury ought to have considered, and I presume did consider, the evidence withdrawn by the ruling. But no harm could have resulted, and I think the objection was properly sustained. *Page 426