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.
READE, J.
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.
(347)