Opinion
December Term, 1856.
One who has a direct, certain, legal interest in the event of a suit, is not a competent witness on the side of his own interest.
The interest which will disqualify a witness is any interest that can be asserted in a Court of justice, whether a common law Court or a Court of Equity.
ACTION of DEBT, tried before PERSON, J., at the Fall Term, 1856, of Forsyth Superior Court.
The action was brought against the defendants, as the administrators of Isaac Pitts, who, it was alleged, had become the surety of A. T. Pitts, in the bond sued on. The defendants pleaded non est factum, and resisted the recovery upon the ground that the signature of their intestate's name to the bond in question was a forgery.
On the trial, one Gardner was offered as a witness for the defendants, who was objected to, upon the ground of interest. It appeared that the proposed witness was the surety of A. T. Pitts, in a note payable to one ___, and that he (A. T. Pitts,) had made a deed in trust, conveying his interest in the real estate descended from his father, (Isaac Pitts, the defendants' intestate,) for the benefit of the payee of this note, in common with many others of his creditors; and it was further shown that a recovery by the plaintiff in this case would exhaust the whole estate of Isaac Pitts, as well real as personal. The objection was overruled, and the witness was allowed to give evidence which was material to the issue. — Plaintiff excepted.
Miller, for plaintiff.
Gorrell and Morehead, for defendants.
One who has a direct, certain, legal interest in the event of a suit, is not a competent witness on the side of his interest. By legal, is not meant only such interest as can be asserted in a common law Court, but it embraces any interest that can be asserted in any Court of justice. For instance, if one purchases a bond without endorsement, he has no such interest as can be enforced in a common law Court, but he has the beneficial interest, and is considered as the owner of the bond in a Court of Equity, and, consequently, has such a legal interest, or is so interested in the subject as to be incompetent. There is no difficulty about the rule, but the question is as to its application.
If there be a deed of trust to secure creditors, in an action against the trustee by a third person claiming the trust fund, one of the second creditors is not a competent witness for the trustee, because he has a direct, certain, legal interest in the trust fund, and his interest will be affected by having it diminished. This is our case, with an expansion on both sides, but not so as to affect the principle in any degree. This action is not against the trustee, but it is against one who holds the fund for the trustee, and a recovery against whom will exhaust the fund, so as to leave nothing for the trustee. So, on the other side, a secured creditor is not called as a witness; but the person called is a surety upon a debt which is secured, who will be compelled to pay the debt if this fund is exhausted, and who is entitled, in Equity, to take the place of the secured creditor, and have the benefit of the trust fund; and so he is interested in preventing the fund from being exhausted or diminished.
This interest differs altogether from the interest of a child in his father's estate, who is living; or that of a creditor in the estate of his debtor, while the debt remains at large, or "in gross," i. e., before it is attached to any part of the estate. Herein is the distinction, — in the one case, the witness has no interest in the subject of the suit which can be enforced in a Court of justice; it is a mere expectancy; in the other, the interest of the witness has attached to the subject, so as to be entitled to the protection of the law. While a debt is merely personal, the creditor is a competent witness; but if the debtor attaches the debt to any article of his property, by a mortgage or deed of trust, then the creditor is not competent when his testimony will increase the fund or prevent it from being diminished. There is error. Venire de novo.
PER CURIAM. Judgment reversed.