12 S.E. 1038 | N.C. | 1891
Action to set up a trust in favor of plaintiff in a tract of land.
The plaintiff is the father of Simeon Carey, deceased, and the (268) defendants are the children and widow of the said Simeon. A deed in fee simple for the land was executed by one D. W. Wheeler and wife to said Simeon Carey, on 20 October, 1877. A mortgage on the same land was executed by Simeon to one K. T. Roycroft of same date. This mortgage has since been canceled of record by said Roycroft. The plaintiff alleges that he paid one-half of the purchase-money for the land; that the title was made to Simeon Carey for the whole thereof for temporary convenience of them both. The plaintiff seeks to have the defendants, heirs at law of said Simeon, declared trustees as to one undivided half of the land for the benefit of the plaintiff.
Plaintiff asked that the first issue tendered be amended by the addition of the words, "or for the convenience of both parties as alleged." This was assented to by defendants, and the issues as framed were then as follows:
1. Was the name of Moses Carey omitted for the deed from D. W. Wheeler by mistake, or for convenience of both parties, as alleged?
2. Did Moses Carey pay any part of the purchase-money of the land? If so, how much?
3. Is the cause of action barred by the statute of limitations?
Upon the trial it was admitted by the defendants' counsel that the action was not barred by the statute of limitations; and it was admitted by plaintiff's counsel that the name of Moses Carey was not omitted from the deed from Wheeler through mistake.
K. T. Roycroft, to whom was made the mortgage from Simeon Carey, a witness for plaintiff, was asked by plaintiff's counsel, "Was the date of the cancellation of the mortgage to you from Simeon Carey, as appears of record, the true date of the last payment to you on the mortgage debt?"
Objected to by defendants. Objections sustained and plaintiff (269) excepted.
R. W. Winston, Esq., was then called as a witness for plaintiff. Plaintiff's counsel proposed to show by Mr. Winston that this action was brought by him, as counsel, for both plaintiff and defendants, for the purpose of having the respective rights of the parties adjusted by the aid. *191 of the court that upon some disagreement arising between the plaintiff and the defendant Jennie Carey, the pleading which had been filed were withdrawn by leave of the court, and the plaintiff thereafter notified to employ other counsel; also, to show what transpired between the plaintiff and defendant Jennie Carey in reference to the settlement of the title to the land. Mr. Winston stated that he was representing the defendant Mrs. Carey, who was the guardian of her children, that he was not representing Moses Carey. He was proceeding to make other statements, when the court ruled all his testimony out, and plaintiff excepted.
There was a verdict upon the first issue for defendant, and from the judgment thereon rendered against the plaintiff, he appealed.
The plaintiff excepted to the exclusion of the testimony of the witness R. W. Winston. As it does not appear that the order permitting the withdrawal of the original pleadings was put in evidence, we are unable to see how any testimony tending to explain it was relevant or material. We are of the opinion, however, that the witness should have been permitted to testify as to "what transpired between the plaintiff and Jennie Carey in reference to the settlement of the title to the land." Jennie Carey was the widow of Simeon Carey, who had the legal title, and, as such widow, was an interested party to the action. She was also the general guardian of the infant heirs at law of (270) the said Simeon, and was defending their interest as such guardian. The declarations and admissions of such a party are generally competent (1 Greenleaf Ev. secs. 171, 179; Stephens Ev., 28; Tredwell v.Graham,
The witness stated that at the time of the conversation or transaction he was counsel for the defendant only. Taking it either way, the matter was not privileged, according to the principles above stated.
We think that there was error in rejecting the testimony, and for this reason the plaintiff is entitled to a new trial.
2. The first issue was improperly framed. "It is misleading to embody in one issue two propositions as to which the jury might give different responses." Emry v. R. R.,
3. The court excluded the testimony of Roycroft as to the date of the cancellation of the mortgage executed to him by Simeon Carey. In this ruling, his Honor but followed the opinion delivered in this case when it was before us upon a former occasion (
New trial.
Cited: Smith v. R. R.,