Summary
In Weinstein v. Patrick, 75 N.C. 344, the plaintiff sued the administrator of a deceased grantor and others to set aside an alleged fraudulent conveyance.
Summary of this case from Sanderson v. PaulOpinion
June Term, 1876.
Witness Under Code, Section 590.
1. Although a defendant, called by the plaintiff, may be competent to testify as to transactions and conversations had with a person at the time he deceased, against his own interest, he cannot be thereof examined against the interests of other defendants.
2. Where the proposed witness is only a defendant in form, but in substance a plaintiff, his interest being identical with that of the plaintiff, he cannot be examined, under section 343 of the Code of Civil Procedure, as to any communication or transaction between himself and a person, at the time of such examination, deceased.
SPECIAL PROCEEDINGS instituted in the probate court of GREENE to sell land for assets, and transferred to the Superior Court of said county and there tried before Seymour, J., at Spring Term, 1876.
The petition was filed against Patrick, the administrator of the deceased debtor, and against others, who it was alleged had received (345) the land attempted to be sold under a fraudulent conveyance, and who had conveyed the same by like conveyance. Issues as to the alleged fraud being raised it was sent to the Superior Court for trial.
On the trial in the court below it appeared that in 1867 S. T. Stilly, the intestate, by deed of bargain and sale, conveyed the land, the subject of this controversy, to his brother, the defendant Marshall Stilly, for the expressed consideration of $600; and Marshall Stilly on the same day, by deed with warranty and in consideration of love and affection, conveyed the same to Louisa Stilly, wife of the said S. T. Stilly, now Louisa Cameron, defendant. Both deeds were written and witnessed by the defendant Patrick and one W. T. Lewis, no relation of the family.
The intestate S. T. Stilly had no issue, and the deeds above alluded to were executed in his last sickness and about ten days before his death. No money or other consideration was actually paid by said Marshall Stilly for the land. He gave a note for the $600, and has never seen or heard of it since. He was a creditor of the intestate for about $800, which has never been paid.
The plaintiffs introduced Marshall Stilly as a witness to prove the transactions and conversations connected with the sale of said land between the intestate and himself, the witness. This proposed evidence the defendants objected to on the ground that section 343, C. C. P., rendered him, the proposed witness, incompetent. His Honor overruled the objection and permitted the witness to be examined. Defendants excepted. No other witness to prove said transactions and conversations was introduced.
There was a verdict and judgment for the plaintiffs. Defendants appealed.
Faircloth Grainger for appellants.
Gray Stamps contra.
It is clear that under C. C. P., sec. 343, Marshall Stilly (346) could not have offered himself as a witness to speak of the transaction between him and the deceased debtor; but here he does not offer himself, but is offered by the plaintiff to prove that the transaction between the deceased debtor and himself (Marshall Stilly), under which he claims title to the land, was fraudulent against the plaintiff. It would seem that there could be no objection against allowing Marshall Stilly to be offered to testify against his own interest. And so far his Honor was right. But he not only allowed him to testify against his own interest as against himself, but also as against the interest of the other defendants. And in that his Honor was in error.
So much for general principles. But there is a special reason in this case why Marshall Stilly should not be called even by the plaintiff, because Marshall Stilly, although a defendant in form is a plaintiff in substance. His interest is identical with the plaintiff's. The plaintiff is a creditor of the deceased, and if the sale of the land to Marshall Stilly is declared void he gets his debt. Marshall Stilly is also a creditor of the deceased, and if the sale of the land is void gets his debt. So that this case is like Redman v. Redman, 70 N.C. 257, where a defendant is treated as plaintiff.
It is true that Marshall Stilly, in his conveyance of the land to one of his codefendants, warranted the title, so that it is to that extent his interest to support the transaction between him and the deceased, and we do not know on which side this interest predominates; but under all the circumstances we do not think that he was competent to speak of the transaction between him and the deceased. Reynolds v. McCanless, 74 N.C. 301. There is error.
PER CURIAM. Venire de novo.
Cited: Gulley v. Macy, 84 N.C. 445; Tredwell v. Graham, 88 N.C. 211; Owens v. Phelps, 92 N.C. 235; In re Worth's Will, 129 N.C. 225; Seals v. Seals, 165 N.C. 412.
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