Imágenes de páginas

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 mortgagor'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 the 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 no 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 was so 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 forbade all such enterprises. It might be inferred from this decision that under such a statute, although it expressly provided that an interested person should not become competent by assigning his interest, an interested person might become a competent witness by an assignment of his interest where it did not appear that such assignment was made for the express purpose of rendering him competent. Under a statute expressly providing that the assignment of a claim by a person who was incompetent to testify for himself should not make him competent to testify for another, it was held in Harpending v. Daniel (1882) 80 Ky. 449; Neale v. Neale (1896) 18 Ky. L. Rep. 343, 36 S. W. 526; Hagins v. Arnett (1901) 23 Ky. L. Rep. 809, 64 S. W. 430; James v. Walker (1902) 24 Ky. L. Rep. 468, 68 S. W. 1106; Huff v. Miniard (1903) 24 Ky. L. Rep. 2272, 73 S. W. 1036, and Davis v. Strange (1913) 156 Ky. 420, 161 S.W. 217, that the assignment by an incompetent witness of his interest did not render him competent to testify for his assignee as to a transaction with a decedent. One who has assigned his title to the land in controversy after the death of the one in possession thereof cannot testify, in an action of ejectment by his assignee against the heir of the one in possession, that the latter held possession under the witness with his permission, under a statute reading that no assignment, release, or transfer of interest, made after the death of the decedent, shall have the effect to render the transferrer a competent witness. Jones v. Sherman (1879) 56 Miss. 559. And in Neale v. Neale (1896) 18 Ky. L. Rep. 343, 36 S. W. 526, where it appeared that a note in some way had passed into the possession of the son cf the payee, and before her death was assigned by the son to another, and after the death of the payee her administrator brought an action against the maker of the note and the assignee, claiming that the note belonged to the estate of the payee, and the assignee defended upon the ground that the note was assigned by the payee to her son and by her son to him, it was un

successfully contended that the son was a competent witness for the assignee because he had assigned it during the lifetime of his mother and at a time when he would have been a competent witness to testify concerning his transaction with her, on the theory that the provision of the statute

that the assignment of a claim by a .

person who was incompetent to testify for himself shall not make him competent to testify for another referred only to a person who was incompetent under a preceding provision of the same section, to testify concerning a transaction with a decedent at the time it occurred, but the court held that such contention was not tenable, for the reason that the condition of the disqualification of a person to testify before assigning away his interest in the subject-matter, imposed by the prior provision that no person should testify for himself concerning a transaction with one who is dead when the testimony is offered to be given, was the fact of the party with whom the transaction was made being “dead at the time the testimony is offered to be given,” and that this condition necessarily operated after as well as before the assignment of the interest of the witness in the subject-matter of such transaction, for without it the manifest object of the provision that an assignment should not render a witness competent could easily be defeated.

But in Shoptaw v. Ridgway (1901) 22 Ky. L. Rep. 1495, 60 S. W. 723, an action to enforce a vendor's lien against the administrator of the purchaser, was held that one of the owners of the property, who had assigned his interest in the property as one of the heirs to the other heirs, before its sale to the intestate, was a competent witness to testify to the transaction with the intestate upon the ground that he had not assigned his interest in the subject-matter of the litigation, within the meaning of the statute that the assignment of a claim by a person who is incompetent to testify for himself will not render him competent to testify for another, since such provision was evidently intended to prevent one who had or

claimed some right from a decedent, from subsequently assigning his claim so as to qualify himself as a witness against the decedent. And in Westbury v. Simmons (1899) 57 S. C. 467, 35 S. E. 764, an action by the administrator of an insured to recover the proceeds of the insurance • from one to whom the assignee of the decedent had assigned the policy, the defendant claiming the assignment to have been for the purpose of securing a debt owing to him, and the plaintiff claiming that the assignment was made simply for the purpose of securing the reimbursement of the assignee for premiums paid, under a statute providing that any person who, previous to his examination, has had an interest in the action, however the same may have been transferred to a party to the action, shall not be examined in regard to a transaction between the witness and a decedent, in an action prosecuted or defended by an administrator of the decedent, when such examination or any judgment or determination in the action can in any manner affect the interest of the witness, or the interest previously owned or represented by him, it was held that the assignor of the policy to the defendant was a competent witness, because his testimony as to a transaction with the decedent was not offered for the purpose of promoting the interest previously owned by the witness, and such was not its tendency. c. Under statute conditionally favoring removal of disqualification.

While, under a statute providing that no person who would, if a party to the suit, be incompetent to testify therein, shall become competent by any assignment of his claim made for the purpose of allowing him to testify, an interested witness does not, of course, become competent by assigning his interest, expressly for the purpose of testifying; there must be some direct evidence in the record that he assigned his interest for the express purpose of testifying, to prevent him from becoming competent by such assignment. Stephens v. Hoffman (1914) 263 Ill. 197, 104 N. E. 1090,

holding that there was no direct evidence sufficient to satisfy that condition, and that therefore the disqualification was removed. In the reported case (SNYDER v. STEELE, ante, 1), involving a release, it will be observed that the evidence is held to satisfy the condition, and the disqualification was therefore not removed. Under a statute providing that a witness may become competent by a release of his interest made in good faith, an assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which such statute intends, and is ineffectual to accomplish that purpose. Darragh v. Stevenson (1897) 183 Pa. 397, 39 Atl. 37; Yerstine v. Yeaney (1904) 210 Pa. 109, 59 Atl. 689; Morgan v. Lehigh Valley Coal Co. (1906) 215 Pa. 443, 64 Atl. 633. But the disqualification of a witness, not a party, from interest in the result of the action, may be removed by release or assignment, even though the sole purpose of the instrument is to make the witness competent to testify. Stewart's Estate (1894) 3 Pa. Dist. R. 747, 15 Pa. Co. Ct. 380 (assignment). In Stephens v. Hoffman (1914) 263 Ill. 197, 104 N. E. 1090, supra, one who had quitclaimed all of his interest in the land to the defendant in an action in ejectment by the executors and devisees of a decedent was held a competent witness, upon the ground that while there were some circumstances in the record upon which an argument might be based that such witness deeded away his property for the express purpose of testifying, there was no certain or direct evidence upon that point, it only appearing that, some years before the present action, such witness had brought an action in ejectment against the present plaintiffs, which was twice tried, but the result thereof was not shown; that in the same year the witness quitclaimed half of his interest to his attorney in consideration of legal services, and quitclaimed the other half of his interest, to another person for a past consideration, and that his grantees went into possession of the property. But in Dyer v. Hopkins (1884) 112 Ill. 168, a quitclaim deed of land involved in a suit to set aside an adverse title against parties defending as executors and devisees was held to be purely colorable and made as a release of the grantor's interest merely for the purpose of rendering him competent as a witness, where, after he was first examined in the case, and before he was next examined, he had quitclaimed his interest to a third party, who by the same kind of conveyance conveyed it to the witness's wife, and the witness and his wife continued to occupy it as a homestead. In Zimmer v. Zimmer (1921) 298 Ill. 586, 132 N. E. 216, an action by an heir to have dower assigned to the husband of the intestate and the property partitioned among the heirs, in which a defendant heir claimed title to the entire property, alleging that he purchased the property and that his mother, the intestate, held it only as trustee, and conveyed it to her husband as trustee, who by warranty deed conveyed it to such defendant heir, it was held that the husband was not a competent witness to testify to transactions with the intestate, because he was interested adversely, by reason of his conveyance and his covenant of warranty. And it was held in Fischer v. Haxtun (1918) 210 III. App. 506, as shown by the abstract of the decision, upon a bill by the trustee under a trust deed and the executor of the will of the holder of the note secured by the trust deed against a husband and wife, the signers of the trust deed, to enforce payment of the note by foreclosure of the trust deed, that the fact that, during the pendency of the proceedings, the husband conveyed the mortgaged Property to his wife, did not remove the incompetency of both to testify under the statute providing that no party shall be allowed to testify when the adverse party sues or defends as the executor of a deceased person. But in a suit to annul a mortgage as a cloud on title against the administratrix of the assignee of the mort

gagee, who filed a cross bill to foreclose the mortgage, the mortgagee is not rendered incompetent by the statutory provision relating to the competency of the testimony of interested persons in suits where the adverse party sues or defends as the representative of a decedent. Barton v. Hayden (1916) 199 Ill. App. 37. In an action, involving the title to land, against the devisee of the former owner by the heir of such owner's deceased wife, who claims through a deed executed by the former owner to her, the husband of another heir of the deceased wife, who has joined with such heir in an assignment of their interest in the property to the plaintiff, is a competent witness under a statutory provision that an incompetent witness shall become competent by a release or extinguishment of his interest. Turner v. Warren (1894) 106 Pa. 336, 28 Atl. 781. The court said that whether the assignment was in good faith was a question for the trial judge, and that the action of the judge, after the testimony of the witness that the assignment was in good faith and that there was to be no reconveyance, in permitting him to be sworn, leaving his credibility to the jury, was in effect a determination by the trial judge that the assignment was made in good faith. And in an action by the administrator of a decedent to recover a sum reserved as a charge on land in a deed executed by the decedent to the defendant, who defends upon the ground that the charge does not belong to the decedent’s estate because it was assigned by the decedent to his grandson, and by the latter to another, the administrator claiming such assignments to be void, the grandson is a competent witness, since he had, during the decedent's lifetime, transferred every particle of interest he could have in the charge. Miller v. Withers (1898) 188 Pa. 128, 41 Atl. 300. But in DeRoux v. Girard (1898) 90 Fed. 537, controlled by the Pennsylvania statute which provided that a person otherwise incompetent should become competent by a release or ex

« AnteriorContinuar »