47 Colo. 433 | Colo. | 1910
delivered the opinion of the court:
The subject-matter of this action is a five-acre tract of land in Boulder county, to which plaintiff
Most of the thirty-two1 assignments of error are directed to rulings of the court upon evidence. Except those hereinafter separately discussed, they pertain to questions propounded by plaintiff’s counsel, in making out his case in chief, which sought to elicit evidence bearing upon the issues of undue influence, conspiracy, fraud, and lack of consideration for this deed, which issues are made by the replication. The court sustained objections to them
Some objections to the evidence, however, are substantial in character and require separate consideration. There was evidence tending to show that the property in dispute was purchased by Mrs. Allen for a home, and after she and her husband erected a house thereupon it was their intention to occupy it as a permanent residence. In her deed to defendant, which was introduced in evidence, the plaintiff, her husband, did not join, and plaintiff says that it was improperly received because of such non-joinder on his part. Neither the husband nor wife was living on, or occupying, the premises at the time this deed was executed and delivered. The premises in controversy did not, because of the lack of this essential element, constitute a “homestead,” whatever be the meaning of that word as used in our statute. The right to a homestead does not consist in purchasing property for a homestead, but in
Plaintiff in making out his case in chief called to the witness stand the defendant to be examined as if under cross-examination, which he is permitted to do under sec. 7284, Rev. Stats. 1908.' By this section the party called for such examination shall not be concluded thereby, but may rebut it by counter-testimony. The cross-examination to which plaintiff subjected defendant covered a very wide range, and bore on all the material issues raised, by the pleadings and even passed beyond them. In making out his defense defendant himself was called to the stand by his counsel and plaintiff objected to his giving any testimony in his own behalf upon the ground that plaintiff -was suing in his capacity as heir at law of a deceased person, and under sec. 7267, Rev. Stats. 1908, when the action is by an heir, the adverse party or person directly interested in the event thereof shall not be allowed to testify of his own motion or in his own behalf unless when called as a witness by such adverse party. It has been held by this court, Warren v. Adams, 19 Colo. 315; Jerome v. Bohm, 21 Colo. 322, that when, in such an action, a disqualified witness is called by the adverse party and examined by him as a witness upon certain matters pertinent to some of the issues in the case, such witness is thereby rendered competent for all purposes. Plaintiff, however, says in that case the witness was not called for cross-examination' under our statute, but was called by the adverse party as his own witness generally. The purpose for which he is called makes no difference in the application of the principle. This has
Defendant also called as a witness his father, and objection was made by the plaintiff to his testimony upon the ground that he was interested in the result of the suit. It appears that the father claimed other premises by deed from his daughter, whose validity, in another action between plaintiff and the father, was attacked upon substantially the same grounds as those on which in the pending action defendant’s deed is said to be void. The interest which the father had, and which it.is claimed disqualified him as a witness in his son’s behalf, is not such interest as is contemplated by the statute. The father was not directly interested in the event of this action, although he was in the question to be decided. The true test of the interest, however, as said by Mr. Greenleaf,. 1 Green. Ev. (15 ed.), secs. 389, 390, is whether he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action; and it must be a present, certain, and vested interest. This was expressly held in Smith v. Smith, 22 Colo. 480, 489. In that case the same fraudulent conduct was alleged against two or more persons, who claimed nnder deeds from the same grantor. Separate actions were brought against the grantees and they were consolidated for trial, and the court held that the consolidation was improper because it prevented each defendant from getting the benefit of the evidence of the other in his own action.
The assignments of error directed to the instructions are not well taken. Those given by the court follow closely our decision in Smith v. Smith, supra, s. c. 24 Colo. 528, and Phillips v. Phillips, 30 Colo. 516. Those tendered by plaintiff and refused by the court, so far as they state correct legal and pertinent propositions, are included in those given by the court of its own motion. Some of those refused were good in part and bad in part, and the court properly refused them in their entirety, because it was not required to separate the good from the bad. Some of the instructions tendered might be good under another state of - facts, but were not based upon the evidence in this case, particularly those which relate to alleged undue influence, non-delivery of deed to the defendant until after the grantor’s death, and control over the property by the grantor after she executed the deed. There was no evidence at all tending to establish these issues, and the instructions requested by plaintiff upon these legal propositions were for that reason properly refused.
We cannot interfere with the judgment on the ground of the alleged insufficiency of the evidence. It is true, as plaintiff says, that in a case of this kind it is a difficult task to prove such charges of fraud and undue influence. But courts must decide cases upon the evidence which is produced before them, not on suspicions, or what counsel believes to be facts which he cannot assemble. The jury were correctly advised as to the law applicable to the issues,
Perceiving no prejudicial error in the record, the judgment must be affirmed. Affirmed.