4 Mo. 484 | Mo. | 1837
Opinion of the court, delivered by
The first point for the complainant.is, that on the evi-Uence, the decree should have been for him.
2d. That the circuit court, for the county of Clay erred .in admitting the deposition of Elizabeth Welch, the widow of the intestate, who was'the wife of the deceased,at the time the transaction occurred of which she speaks,
When this case was before the-court a year ago, we were of opinion the circuit court erred in admitting the ■deposition of Elizabeth Welch, and-we so decided ; but a re-argument was "ranted, and we now think that opin•ion was wrong, in the former opinion, the court on the ground that the grantor, in case of a fraudulent deed, could not be heard to sustain the transaction, that if Welch, the intestate, if living, could not give evidence in the case: the wife could not, as the facts she deposed to came to her kno wledge during coverture. The ■reason.why Welch could not be a witness, as we then thought, was, because there is strong testimony in the case to shew, that the transaction was intended to cover properly from creditors ; and, on the authority of a case -in 3 Jobpson’s cases 612; Whipple vs. Lansing, and another, we made that decision. We are now of opinion that the better authority is, that the grantor may give evidence to support a deed made by him, if he is not bound by'covenants of title, &c. To place.this doctrine correct, several cases have been cited.
It' appears from these cases, that a grantor has been admitted to sustain his own deed when the same was attacked as fraudulent; but the objection goes strongly to his credit where there are no covenants of title ; the objection goes to the moral character of the witness, and not to his interest; he stand? in the light of a parlicep fraudes* and it has long ago been settled, that a parlicep criminis may be a witness. See to -this point, 2Starkie’s evidence, page 5, American edition. This last doctrine, more than any other thing,inclines us to the opinion that the former opinion was wrong. But if this point were ruled otherwise, the decree is still right. In this, that there ís^no proof on record, that ^Wblch was at all indebted when he made the transfer of the Gentry debt to his son; on the'eontrary, be had large property. We will not enlarge on the evidence, as there was no motion for a ne^w trial, and if there had been such motion, on the proof the record, it would have failed. The decree is affirmed with costs.
