¶1The contention is renewed in motion for rehearing and in request to certify to Supreme Court, and is persistently urged in both written and oral arguments, that the declarations of appellant R.V. Bell as to the northwest corner of the little *380 Mora survey, though made before he became the owner of that survey, were properly admitted in evidence against him. No case directly in point has been cited on either side.
¶2Mr. Greenleaf, volume 1, section 179, states the rule as we understand it, thus: "The admissions which are thus receivable in evidence must, as we have seen, be those of a person having at the time some interest in the matter afterwards in controversy in the suit to which he is a party." He then proceeds to illustrate it, but by cases in which admissions of guardians, administrators, and the like, made before they were clothed with the trust, were held to be inadmissible against them in their representative capacity.
¶3In Wood's Practice Evidence, page 501, we find the same rule stated thus: "Nor are the declarations of a party interested in the matter in controversy [admissible], if made at a time when he had no interest;" to sustain which he cites the case of Burton v. Scott, 3 Randolph (Va.), 399, which is directly in point. That was a will contest, involving the testamentary capacity of Major Scott, the testator. The declarations of Mrs. Scott, made before the will was executed, and tending to show the incapacity of her husband to make a will, were excluded as incompetent.
¶4Two of the four judges participating, all of whom concurred, delivered opinions, that of Judge Carr, upon this point, reading: "The real question then is this: Can the declarations of a person as to a subject in which he had no interest at the time be given in evidence against him, if by any subsequent event an interest in the subject should be thrown upon him? I have not been able to find any authority directly on this point. All the cases in which the declarations of a party are said to be evidence against him, show that he had, at the time of making such declarations, an existing interest. The principle, however, on which his declarations are made evidence will, I think, decide the question before us. `The true meaning and sense of the rule, that the declarations of parties may be given in evidence against them, is the reasonable presumption that no person will make any declaration against his interest, unless it be founded in truth.' Testing the question by this criterion, the declarations of Mrs. Scott, made before the will, can not be given in evidence; for it is the will which gives existence to her interest. Before its date she could not know that she would be left a penny; she could not know that it would not be so written as to oblige her to renounce it, and fly to the law for her support. She has not then that motive so powerful as to afford a safe guarantee that she would make no declaration as to the incapacity of her husband which was not founded in truth; and her declarations, wanting the essential quality to make them evidence, were properly excluded."
¶5That of Judge Green reads: "The declarations of Mrs. Scott offered in evidence were made at a time when she had no interest, any more than a perfect stranger, in the question whether Major Scott was sane or insane. They can not, therefore, be received as her admissions against her *381 interest, nor as hearsay, any more than those of a perfect stranger, who was disabled from giving evidence by death."
¶6We conclude, therefore, that both in principle and on authority the declarations of Bell, being clearly incompetent when made, did not become competent because of his subsequently acquired interest.
¶7It is now for the first time suggested that, because of his interest in some other survey than the Mora, he was interested in the corner in question when the declarations were made, but the suggestion comes too late to require us to search the record again to find a new support for the ruling in question. It should have been made on the original hearing.
¶8Nor do we determine whether the evidence might not have been admissible as impeaching testimony, since it was not so offered.
¶9The other ground of the motion is sufficiently covered by the opinion already filed.
¶10Since we see no reason to doubt the correctness of the disposition made of the appeal upon either ground, both the rehearing and the certificate to the Supreme Court will be denied.
¶11Overruled.