60 N.C. 120 | N.C. | 1863
The objections to the competency of testimony were untenable, and his Honor was right in so deciding.
1. McPhail was competent to testify for the plaintiff. His testimony was against his interest. In proving that the deed from McDougald to him was void on account of the incapacity of the grantor to make it, he *69 showed that he was liable to the defendant, who was the purchaser of the land as his, under a sheriff's sale. See Rev. Code, ch. 45, sec. 27.
2. Clary v. Clary,
Upon the question of estoppel, his Honor's opinion was wrong. If the deed from McDougald to McPhail was a nullity because of the grantor's insanity, we cannot see how it could estop the grantee or any person claiming under him. It certainly did not estop the grantor, and a primary rule in the doctrine of estoppels is that, to be of any (122) force, they must be mutual. Hence the defendant was not estopped to take advantage of the fact that the plaintiff's lessors could not show title to the third tract of land described in the plaintiff's declaration. It was error, then, in the court to instruct the jury that the lessors were entitled to recover that tract, and for the error thus committed the judgment must be reversed and a
PER CURIAM. Venire de novo.
Cited: Drake v. Howell,