8 N.J. Eq. 356 | New York Court of Chancery | 1850
The trust, in the deed from George G. Campbell to Robert Campbell, since deceased, was, that, from the proceeds of the property, a debt due from the said George G. to the said Robert Campbell should be first paid, and then, certain specified debts due from the said.George G. Campbell to other persons. The property Was sold by the trustee, in his lifetime. George G. Campbell, afterwards, assigned to Robert ' G. Campbell, his son, all his interest in the said trust deed; and this bill is exhibited by the said Robert G. Campbell, against the administrator of the estate of the said Robert Campbell, deceased. George G. Campbell is not made a party in the Suit; but has been examined as a witness for the complainant, under objection to his competency. The question in the cause to which the great body of the testimony on both sides has been directed is, whether there is any subsisting claim against the trustee, under the provisions of the trust. The complainant examined George G. Campbell to prove, that the said debt due from him to Robert Campbell was paid by him the said George G., and with moneys not derived from the trust property, and thus "to sustain his claim to an account. On the other side, a ■great amóunt and variety of testimony has been taken, to disprove the Said alleged payment by the said -George G. Campbell, ' and to show that there was nothing due from the trustee, under the provisions' of the ffrist. My conclusion from the whole testimony is, (it is not necessary to recapitulate it,) that’ the evidence of the said'alleged payment by the said George G. Camp
But, is George G. Campbell a competent witness to prove the payment alleged to have been made by him 'l The conveyance in trust was, to pay a debt due from him to the trustee, and then to pay certain other debts due from him to other persons. Can he, by assigning to a third person his interest in the trust, become a competent witness to prove that he paid the debt due from him to the trustee, with funds of his own, not derived from the trust property 1 I think not. But, if he should be held to be a competent witness, on the ground that, having assigned all his interest in the trust, it is indifferent to him, in point of interest, whether his assignee recover more or less, or anything at all, from the trustee, his testimony would • be entitled to little consideration, unless the good faith of the assignment should be satisfactorily shown. The assignment may have been made for the very purpose of putting George G. Campbell in a position to make out the case, in the name of the complainant, by his own oath ; and the circumstances of the case and testimony in the cause strongly impress the conviction that it was made for that purpose. Again, as to the bonafides of the assignment to the complainant; what consideration would a bona fide assignee pay, in reliance on George G. Campbell’s affirmation that he had paid the said debt due from him to the trustee, and in expectation of making George G. Campbell’s testimony available, in a suit between the assignee and the trustee, to prove such payment 1 There tis no satisfactory evidence of the bona fides of the assignment to the complainant. On the contrary, an answer given by George G. Campbell, in his testimony, is sufficient to show its object, and its want of good faith. The answer is as follows: “ I don’t know that I made the assignment so that I could be a witness in case of a suit, but it was made so that in case I did recover anything by the suit it could not go to the creditors of the firm,” (a firm of which he was a member.)
The account prayed for is denied, and the bill will be dismissed.
It is not necessary to examine the other question raised on the argument, whether Robert G. Campbell is the proper complainant in this suit.
Order accordingly.