#### JACOB HARSHAW *vs.*E. S. MOORE.

In an action brought by a mortgagee against a creditor of the mortgagor, claiming property under an execution against the mortgagor, it being al-ledged that the mortgage was made with a fraudulent intent, the declarations of the mortgagor, immediately before and in contemplation of the act, may be given in evidence against the mortgagee. His declarations after the act are not admissible in evidence.

Appeal from the Superior Co^»t of Law of Burke County, Fall Term, 1851, his Honor Judge Dick presiding.

This was trover for the Conversion of a slave. Both parties claimed under one Glarke.

The plaintiff read in evidence the record of a suit in equity, in which he was plaintiff, against the said Clarke for the foreclosure of certain mortgages, in which such pro* céedings were had, that a sale Was ordered to be made by the Clerk and Master; at which sale the plaintiff became *248the purchaser of the slave. He also proved, that the defendant afterwards took the slave out of his possession and sold her at public auction.

The defendant read in evidence an execution in favor of one Miller against the said Clarke, under which he made a levy and sale; and proved, that the debt, upon which the judgment in favor of Miller was rendered, existed long before the execution of the mortgages upon which the above decree was obtained. He also proved, that, before and at the time of the execution of the mortgages, Clarke was greatly indebted to several other persons ; and he proved by one Presswood, that he drew the mortgages at the request of Clarke; they conveyed all of Clarke’s property, and he told the witness to insert $ 1200, as the amount of his indebtedness to the plaintiff; he also told the witness, shortly before the execution of the mortgages, he was about to be pressed by some security debts — he would not pay them, and, to avoid it, he intended to mortgage all of his property to the plaintiff.

The defendant then called one C-offy. He stated, that Clarke told him a few days before the execution of the mortgages, there were some security debts coming against him, and to avoid paying them, and to keep his property, ■he was going to mortgage it to the plaintiff; in the same conversation, he told him he owed the plaintiff #105, and ¡the plaintiff was his surety to Murphey’s estate for $120. The plaintiff objected to this part of the conversation. The defendant'also called the wife of Clarke. She stated, her ■husband told her the day before he mortgaged his property, >. ■that he was going to do so, to avoid paying security debts, and to have the use of it; he also said he owed the plaintiff #105, and he was his surety to Murphey’s estate for $120. This testimony was objected to. The mortgages were read .in evidence.

The plaintiff then read the bill against Clark e to foreclose, and-Clark’s answer, .and an award of certain referees, find*249ing'the amount of the indebtedness of Clarke to the'plaintiff at the date of the mortgages, and offeredto prove what Clarke -said was the amount he owed him,,in a conversation after the execution of the mortgages, and before the levy of the execution by the defendant. This was rejected.

The Court instructed the jury, among other things, that in ascertaining the amount of the indebtedness of Clarke to the plaintiff, at the time he executed the mortgages, the finding of the referees was not conclusive on the defendant, because he had no opportunity of being heard before them, and was not a party to the suit in equity.

The jury found for the defendant; and the plaintiff moved for a new trial: 1st, because the Court erred in admitting the declarations of Clarke, as to the amount,he owed .the plaintiff made before the execution, of the mortgages : 2nd, because Clarke’s declarations, after the execution of the mortgages, were rejected: 3rd, for erfor in the charge, in respect to the finding of the referees. Motion refused; judgment, and the plaintiff appealed. .

*Avery*and *Gaither,*for the plaintiff.

*Bymim, N. W. Wood/in*and *T. R. Caldwell,*for the defendant.

Pearson, J.

The case turned upon the intent, with which Clarke executed the mortgage deeds. The defendant alleged, that his intent was to hinder, delay and defraud his creditors. His declarations, immediately before and in contemplation of the act, were clearly admissible to show his object in doing it. He was the owner of the property. His declarations were against his interest, and strong evidence bearing upon the very point against him and the plaintiff" who claims under *Ms deed.*In fact, the question was concluded by admitting the first part of the conversation without objection. In that, he declared in general terms an ntention to avoid the payment of his debts; and the. suh-*250sequent part of the conversation, in reference to the amount he owed the plaintiff, was a mere explanation of the manner, in which the fraud, avowed in the former part, was to be effected.

The *competency*of the wile is not made a question by this record, and we can, therefore, give no opinion upon it.

The declarations of Clarke, after the execution of the mortgage deeds, were properly rejected. He was not then the owner of the property, for the conveyance, although void as to creditors, was valid as between the parties; and his declarations were inadmissible to sustain his deeds against one, who claims under a title conferred by law.

We are at a loss conceive of any principle, by which it ought to have been held, that the •' finding of the referees,” and the decree between the plaintiff and Clarke, were con-elusive on the defendant. It was “ *res inter alios acta,”*and, was evidence merely of its existence, and not of its truth. „

There is no error.

Pee. Curiam. Judgment affirmed.