And in Buckley v. Runge (1911) Tex. Civ. App. 136 S. W. 533, an action to try the title to property between the heirs of the former owner and the administrator of his grantee, it was held that a conveyance by one of the heirs not a party to the action, to another heir, of all his interests in the property in controversy, made him a competent witness to testify to a transaction with the decedent under a statute providing that, in actions by or against the representatives of a decedent, neither party may testify against the other as to a transaction with the decedent.

And it was held in Sylvester v. Downer (1848) 20 Vt. 355, 49 Am. Dec. 786, that an heir who had transferred his entire interest in the estate of the decedent to a third person was a competent witness in a suit by the executor to recover a claim due the estate, since he could not be made liable for costs unless he gave an express or implied guaranty to that effect, which was not shown in this case.

And in Bower v. Thomas (1882) 69 Ga. 47, it was held that an heir at law of a decedent, whose estate was sued upon a note, was competent, by reason of having immediately parted with his interest as such heir, to testify as to a settlement of the note made by him with the intestate of the plaintiff, the court saying that there was no error in permitting such heir to testify, though the other party was dead, because he was not a party to the suit or cause of action, and would have been a good witness before the act allowing parties to swear, as he had assigned all his interest.

And in Brant v. Dennison (1885) 1 Sadler (Pa.) 62, 5 Atl. 869, holding that the husband was rendered a competent witness in an action of ejectment by an administrator, by reason of the assignment by his wife of her interest in the land in controversy as heir of the decedent, it was stated that the wife herself would have been a competent witness by reason of such assignment. The court said that the assignment appeared to have been made in good faith, and not for the purpose of making the husband a

competent witness, but that even the fact that a witness assigns his interest in the action to qualify as a witness does not constitute an objection to his competency.

But an heir who has quitclaimed his interest cannot testify, in an action of ejectment against his grantee by another heir, as to a transaction with the decedent, since he comes within the spirit of the statute prohibiting a party from testifying to a transaction with a decedent whose estate is interested in the result of the suit. Boykin v. Smith (1880) 65 Ala. 294.

And where one who is given a judgment bond partly for his own use and partly in trust for others, in breach of the trust and without the consent of the beneficiaries enters satisfaction of the judgment upon the judgment debtor's promise to confess a new judgment, and, upon his failure to do so, the administrator of the trustee, who has died meanwhile, brings an action against the judgment debtor to recover the amount of the judgment, the assignment by the son of the decedent to a third person of all his interest in the action does not render him a competent witness, since he is still interested in the success of the action, because, in case of failure, the decedent's estate, because of the breach of his trust by the decedent, will have to make good the loss to the beneficiaries of the trust and the share of the witness in his father's estate will be thereby diminished. Kimball v. Kimball (1832) 3 Rawle (Pa.) 469.

Grantor, mortgagor, or mortgagee.

Where, in an action of ejectment by the legal representatives of a decedent, claiming by inheritance, the defendant claimed title through grantee of the decedent, such grantee, who conveyed the property to the defendant, is not a competent witness to testify as to transactions with or statements by the decedent. Wisdom v. Reeves (1895) 110 Ala. 418, 18 So. 13. In this case the transactions with or statements by the decedent appear to have taken place, or to have been made, before the transfer by the witness to the defendant.

But in Priester v. Melton (1905) 123 Ga. 375, 51 S. E. 330, an action of ejectment, where it appeared that there were three demises, and that the lessor in the first demise was dead and his legal representative was not a party, it was held that the lessor in the second demise, who had conveyed all of his interest to the lessor in the third demise, was not rendered incompetent by any of the provisions of the statute, to testify to transactions and communications between himself and the lessor in the first demise, on the trial of an issue between the lessor in the third demise and the tenant in possession.

In an action against the heirs of a decedent to set aside a deed to the decedent from the same person who conveyed the property to the plaintiff, upon the ground that the deed to the decedent was void because delivered upon a condition never performed, the common grantor, who executed the deed to the plaintiff to enable him to maintain the suit for their mutual benefit, is rendered incompetent, however, to testify that the prior deed to the decedent was conditionally delivered, by the provision of the statute that no person directly interested in the event of an action shall be allowed to testify therein of his own motion, or in his own behalf, when the adverse party defends as heir of a decedent. McCann v. Atherton (1883) 106 III. 31.

And it was likewise held under the same statute in Ferbrache v. Ferbrache (1884) 110 III. 210, that a mother who has conveyed by a warranty deed, land to her son, is not competent to testify in an action by him against the heirs of another son, to set aside a prior deed made by her to the decedent, as to facts occurring in the lifetime of the decedent.

But a purchaser of mortgaged premises subject to the mortgage, who conveyed the property to his wife after the death of the mortgagor, is competent to testify to a communication with the decedent in an action by himself and wife against the mortgagee to determine the amount of interest due, under a statute providing that, in an

action by or against the representatives of a decedent, no party to the action shall be allowed to testify as to transactions with the decedent. Eareckson v. Rogers (1910) 112 Md. 160, 75 Atl. 513.

And in Grand United Order, O. F. J. S. A. v. Merklin (1886) 65 Md. 579, 5 Atl. 544, an action against the heirs and personal representatives of the grantee and lessor to have a deed and a lease declared a mortgage, where it appeared that the grantor and lessee, who was also a party to the action, assigned his interest in the lease to the plaintiff before the death of the defendants' intestate, and was discharged under the state insolvent law from all obligations created by the lease, it was held that he would have been a competent witness before the passage of the evidence act, which provided that, when an original party to a contract or cause of action is dead, neither party shall be admitted to testify on his own offer or upon the call of his coplaintiff or codefendant otherwise than then allowed by law, and further held that he was a competent witness, notwithstanding he was a party to the transaction with the decedent.

Where in an action to establish a trust in real property transferred by a mother to her daughter, instituted at the death of the daughter, it appeared that the daughter of the decedent, before being offered as a witness, quitclaimed her interest in the property to the plaintiff, her grandmother, the granddaughter was not incompetent under a statute disqualifying an interested person, since by her quitclaim deed she had stripped herself of any interest which she might otherwise have in the event of the action. Harrington v. Schiller (1921) 231 N. Y. 278, 132 N. E. 89. Sustained on denial of motion for reargument in (1921) 231 N. Y. 646, 132 N. E. 923.

But under a statute providing that no person who has a legal or equitable interest which may be affected by the event of the action, nor any person who previous to such an examination has had such an interest, nor

any assignor of anything in controversy in the action, shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased, as a witness against the party defending as assignee of the decedent, when such examination, judgment, or determination of such action can in any manner affect the interest of such witness, it was held in Williams v. Johnston (1880) 82 N. C. 288, an action of ejectment, where the plaintiff claimed under a deed from a son to whom his father had deeded the land, and the defendant claimed as the assignee of the father, who died before the trial, that the son, who had conveyed the land to the plaintiff upon the understanding that in the event of recovery the plaintiff was to pay him a certain amount, was not a competent witness to testify to a transaction with his father. This decision was based partly upon the ground that the witness, by his conveyance, did not devest himself of all his interest in the event of the action, but still retained, at the time of his examination, an interest therein, because the plaintiff, if successful, was to pay him a specified amount, so that a verdict and judgment in favor of the plaintiff would be evidence for the witness in an action by him against the former on his promise to pay the witness, if successful.

But in Isler v. Dewey (1872) 67 N. C. 93, an action to recover land, in which the plaintiff claimed as its purchaser at an execution sale under a judgment recovered by him against the owner, and the defendant defended under conveyances by such owner to a trustee and by the trustee to the defendant, the court stated, in effect, that the transfer of his interest in the action by the original owner before the time of examination would render him a competent witness to testify to personal transactions with the deceased trustee, under a statute which read that parties may be examined witnesses, provided that no party, nor any person who, previous to his ex

as

amination, has had an interest which may be affected by the event of the action, nor any assignor of anything in controversy in the action, shall be examined in regard to any transaction. or communication between such witness and a person at the time of such examination deceased, as a witness against a party then defending the action as assignee of such deceased person. The decision, however, that the witness was competent, was based upon the ground that he did not come within the prohibition of the statute, because the defendant was not defending the action as the assignee of the deceased trustee.

It was held, however, in Asay v. Hoover (1846) 5 Pa. 21, 45 Am. Dec. 713, that, on a feigned issue to try the title to the proceeds of land between a devisee of the former owner and one of her heirs, the other heirs were not competent witnesses, although they had previously conveyed their interest in the land to the party of record.

And under a statute providing that in actions by or against the representatives of decedents, neither party shall testify to a transaction with the decedent, it was held in Cooper Grocery Co. v. Neblett (1918) - Tex. Civ. App. —, 203 S. W. 365, that the conveyance by an interested witness of his interest in the subject of the action, not made in good faith, but for the purpose of qualifying himself as a witness, did not render him competent. It appeared in this case that the witness conveyed his interest to his mother for a consideration of $1, which the mother paid to him at his suggestion, that the deed of conveyance was never recorded, that it was made shortly before a second trial of the case, that he knew that under the law it was necessary for him to transfer his interest in order to enable him to testify, that the transfer was executed by him at his own suggestion, and that he stated in answer to the question as to whether or not his interest would be reconveyed after the trial that he did not know whether it would or not, and the court stated that it could not be seriously questioned that,

in order to remove the statutory inhibition of his testimony, it was necessary that such a transfer should have been made in good faith, and that if the transfer was a mere camouflage or pretext for the purpose of avoiding the force of the statute, it could not have that effect, and that from his own testimony it was clear that the transfer was made not in good faith, but as a subterfuge only, and for the sole purpose of evading the force of the statute.

Under a Code provision excluding parties and interested persons from testifying as to any transaction with or statement by, a decedent whose estate is interested in the result of a suit, or when the decedent, at the time of the transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom the testimony is sought to be introduced, a mortgagor who has conveyed the mortgaged property to his wife is not competent to testify to payments made by him on the mortgage debt to the mortgagee's deceased agent, in a partition action against the witness's wife by one who is the successor to the estate by purchase of the mortgagee. Jernigan v. Gibbs (1921) 206 Ala. 93, 89 So. 196. It was unsuccessfuly contended in this case that the statute did not render the mortgagor, the defendant's husband, incompetent, because the transactions with the deceased agent occurred long after the mortgagor had conveyed the mortgaged land to the defendant, and that by such conveyance he freed himself from the testimonial disqualification of an interested party as to any subsequent transactions or statements which would otherwise have fallen under the ban of the statute, the court said: "This contention would be sound enough, if his interest in the land had been the only interest affecting his testimonial capacity; but it overlooks the fact that the husband remained liable for the mortgage debt, as to which he was the sole obligor, and in the payment of which he was acting for himself. He therefore comes within the rule of disqualification laid down by the decisions; and, since

he would be disqualified to testify to the transaction in question if he were a present party, he is equally disqualified to testify in favor of one who holds, in privity with himself, the subject-matter affected by that transaction."

And a mortgagor who conveyed mortgaged premises to another is not a competent witness in a foreclosure action by the administrator of the deceased mortgagee against the mort. gagor's grantee, where it appeared that the title to the mortgaged premises is held by the defendant in trust only for the witness, the latter therefore still being interested to diminish or discharge the encumbrance. Little v. Riley (1861) 43 N. H. 109. Effect of warranty.

A grantor of land with a covenant of warranty is incompetent to testify as a witness for the grantee in reference to transactions with a decedent. Hornsby v. Davidson (1900) 21 Ky. L. Rep. 1531, 55 S. W. 684.

And in an action of ejection by the heirs of a decedent who was the grantee of the one from whom the defendant claimed to derive title as a remote grantee, the grantor of the deceased, whose conveyance contains a covenant of warranty, is not a competent witness to prove the execution of such conveyance, and notice to a predecessor in title of the defendant. Hamilton v. Doolittle (1865) 37 Ill. 473.

And in a similar case (King v. Worthington (1874) 73 Ill. 161) of a controversy as to title between an individual and the heir of a deceased, claiming under the same grantor, it was held that the grantor had such an interest in the result of the suit as would have disqualified him from testifying before the passage of the statute, and that he was incompetent under the statute.

And it was held in Cumberland Coal Co. v. Croley (1916) 172 Ky. 222, 189 S. W. 198, that grantors in the defendant's chain of title, whose conveyance contained covenants of warranty, were incompetent to testify to statements made by a deceased predecessor in

title, under the provision of the statute that no person should testify concerning any verbal statement by one who is dead when the testimony is given, since they were interested witnesses, as warrantors of the title.

But in Fitzgerald v. Williamson (1888) 85 Ala. 585, 5 So. 309, an action of ejectment by the devisees of one who had purchased the property in question at an execution sale under a judgment against the owner, where the defendant claimed title under a prior unrecorded warranty deed from the owner, which was not accompanied by any actual change of possession, it was held that the defendant's grantor was a competent witness to testify that he had given notice of the transfer to the decedent prior to the rendition of the judgment upon which the execution sale was based, since such communication with the decedent was made after the witness had transferred his interest in the property, and the witness did not retain, under the circumstances, any interest in the action by reason of his warranty.

And in Brown v. Cave (1885) 23 S. C. 251, where it appeared in an action to foreclose a mortgage upon a decedent's real property and to subject the one-fifth thereof devised to the widow to the payment of debts owed by the decedent to the mortgagee, the widow claimed dower in all of the land, and the sons of the decedent resisted such claim upon the ground that they purchased

no

land together with the decedent, but had the title put in his name for their equal benefit as tenants in common, and claimed that the widow was only entitled to dower in the decedent's share of such real property, it was held that the grantor, though conveying with warranty, was longer interested in the determination of the action, and was a competent witness to testify to transactions between himself and the decedent. This holding was apparently put upon the ground that the action had become substantially changed to one to establish dower, and that the witness was not interested in whether the widow should have dower in all of the

land, or only in part of it, and for the further reason that the witness testified that he made the deal with the sons as well as with the decedent, and that the decedent told him that he was acting for all of them.

b. Under statute against removal of disqualification.

In Alabama the common-law rule was practically codified by a statute providing that an interested person could not make himself competent by transferring his interest. Glover v. Gentry (1893) 104 Ala. 222, 16 So. 38; White v. Thompson (1898) 123 Ala. 610, 26 So. 648.

It was held in Glover v. Gentry (1893) 104 Ala. 222, 16 So. 38, supra, where it appeared in an action against an administrator upon a note alleged to have been executed by his intestate that, after the commencement of the action, the plaintiff transferred the note to his wife and caused the case on the docket to be changed to the use of his wife, that her retransfer of the note to her husband did not render her competent to testify that she saw the note signed by the intestate. This decision, however, was placed upon the ground that there had been no bona fide retransfer of the note to the husband, because such retransfer was merely a ruse to qualify her as a witness in the case, as it appeared that a few minutes before she testified she formally recanted the deal with her husband, without the advice of her attorney, but the written recantation is not in the record, nor does it appear that her husband was a party to the recantation, or was present, or on what consideration it was done. And upon a later appeal of the same case in (1895) 112 Ala. 500, 20 So. 386, the wife was again held incompetent to testify to transactions with the decedent, the court saying that it plain from the evidence that a child might comprehend that the efforts of the husband and wife to undo that which they had done, by which the wife acquired her interest, was for the express purpose of making her a competent witness in the case, and that the statute

was