This was a bill in equity before the Code, to have the intestate of the defendant declared a trustee for the plaintiffs, as heirs at law of Thomas McConnell deceased, of a tract of land, which, it is alleged, said intestate bought for said Thomas, and paid for with the money of said Thomas, but took a deed in his own name.

The burden of proving this was upon the plaintiffs. "We think that the evidence fails to prove the allegation. And to aid ns in coming to a just conclusion, we sent down issues to be tried by a jury; and the jury found all the issues against the plaintiffs. This put the questions beyond doubt.

It is, however, objected by the plaintiffs, that upon the trial of the issue, whether fraud or undue influence was practiced by the intestate of the defendant, he offered the declarations of the said Thomas made after the transaction, but when said Thomas was in possession of the land, that fraud and undue *342 influence were used — which declarations, he says, were competent, because Thomas was in possession.

It is true that what one in possession of property says as explanatory of his possession, and under certain circumstances as explanatory of his title, when he claims title, is competent. But here, the offer was not to prove that he claimed the title, but that he said that the intestate of the defendant had used fraud in getting the deed, not from him, but from Henderson. Now if such declarations would not have been competent if made when he was out of possession, it is difficult to perceive upon what principle his being in possession would make them competent. But however that may be, let it be taken as proved that said Thomas did say, after the transaction, that the intestate had practiced a fraud; yet the Toona fides of the whole transaction is so satisfactorily proved, that such declarations would have but little influence with us.

In cases of this kind, the verdict upon the issues aids us, but does not control us. "We are satisfied with the finding of the jury upon all the issues; and it ought not to have been different upon this issue, if the declarations had been let in.

There must be a decree for the defendant.

Decree accordingly.