Doe on the Demise of McDougald v. McLean, 60 N.C. 120

Doe on the Demise of McDougald v. McLean

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, 24 N.C. 78, has settled the rule that in the case of a deed as well as of a will any witness, though he may not be an attesting one, who has had opportunities of knowing and observing a person whose sanity is impeached may not only depose to the facts within his knowledge, but he may also give his opinion as to the sanity or insanity of such person.

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, 133 N.C. 167; In re Peterson, 136 N.C. 29.