The defendants were incompetent under section 590 of The Code to testify to any alleged personal agreement or transaction between them and the mother, now deceased, under whom the plaintiff claims. Indeed, it would be difficult to find a case falling (179) more directly within the very words of the statute. That the plaintiff herself is alleged to have been a party to the agreement (which she denies), does not affect the matter, as it is not the plaintiff's assent; but the agreement of her deceased ancestor, which was sought to be shown, in order to correct the fee simple deed taken by such ancestor into a trust for life to her, with remainder as tenant in common to the plaintiff and the defendants. Barbee v. Barbee, 108 N.C. 581.
Peacock v. Scott, 90 N.C. 518, and Johnson v. Townsend, 117 N.C. 338, are clearly distinguishable. In those cases the personal transaction or communication was had with two or more persons associated in interest, and it was held that the death of one of them does not prevent such transaction being given in evidence when the associates of the deceased are living and parties to the action. Here the transaction was between the children (now the plaintiff and defendants) on one side, and the mother alone on the other. She left no living associates to narrate her side of the transaction, as in the two cases above cited. It is true the plaintiff is her devisee, but this brings the cases within the very words of the statute which forbids the transaction with a decedent being given in evidence by the opposite party to the transaction, unless the person claiming under the deceased as executor, devisee, etc., is first "examined in his own behalf." The transaction with the deceased, she having no associates, could not be given in evidence by the defendant unless the plaintiff, her devisee, had gone on the stand, and the fact that the plaintiff is alleged to have been a party with the defendants in making the agreement with the deceased, does not render it competent to show what passed between them and the deceased. It would be admissible to show any agreement between the plaintiff and the defendants, but not that the deceased assented to it, Halyburton v. Dodson, 65 N.C. (180) 88, unless the party claiming under the deceased has elected to give evidence in regard to the matter. Sic ita scripta est lex. There have been many cases where the executor or other person claiming under
the decedent could have testified as to the transaction between the decedent and the opposite party, but unless such executor or devisee, etc., elects to testify the opposite party cannot. Armfield v. Colvert,103 N.C. 147.
Error.
Cited: Peterson, In re, 136 N.C. 18; Hall v. Holloman, ib., 36.