In replevin by a mortgagee's administrator alleging title under the mortgage against a party deriving title from the mortgagor, the mortgagor is not excluded by the provisions of Gen. Laws, c. 228, ss. 16-19, from testifying that the note which the mortgage was made to secure was without consideration.
CLARK, J.
There was no error of law in allowing the mortgagors to testify. They were not parties to the action, nor were they within the provisions of any of the statutes excluding the testimony of the adverse party where an administrator, or executor, or insane person is a party of record or a party in interest. G. L., c. 228, ss. 16-19. The fact that they in effect testified that they had previously committed perjury in making a false oath to the mortgage was a matter affecting the credibility of their testimony, not its competency. G. L., c. 228, s. 27; Demeritt v. Miles, 22 N.H. 523. The evidence of one of the mortgagors that the mortgagee was indebted to him for borrowed money about the time the $1,100 note was given, had some tendency to show that the mortgagee had not that amount of money to loan at that time. Demeritt v. Miles, supra.
Exceptions overruled.
STANLEY and BLODGETT, JJ., did not sit: the others concurred.