34 Miss. 18 | Miss. | 1857
delivered the opinion of the court.
The plaintiffs below, as administrators of the estate of Margaret Fairley, deceased, brought this action in the Circuit Court of Clarke county, to recover certain slaves in the possession of the defendant.
The plaintiffs introduced as a witness one John Fairley, a brother of the intestate, and one of the distributees of her estate; and for the purpose of showing the competency of the witness,'an instrument under the hand and seal of the witness was read, by which it appeared that he had, for the consideration of natural love and affection, and the further consideration of one dollar, transferred his interest in the estate to his children.
The court, however, holding this deed to be inoperative, refused to permit the witness to testify. The question is, whether the witness had divested himself of all interest connected with the subject-matter of the suit? The deed recites both a good and valuable consideration, and is therefore valid, unless the subject was one about which the parties could not contract; and it is only necessary to remark in this connection, that all contracts resting upon a sufficient consideration are valid unless declared void by the law. The question is not what the law permits, but what it prohibits. It is, however, said that the deed is only a release, and that a release can only be given to a party in the possession of the property. The language of the deed is: “I have given, granted and released, and by these presents do give, grant and release.” Words of similar import, such as “ remise, release and quitclaim,” have been held to be words of transfer and conveyance, and are sufficient to invest
Under any view, the deed in this case is sufficient to estop the witness from asserting any title or right in the estate; and, having this effect, the witness was rendered competent, and should have been permitted to testify before the jury.
But it is objected that the facts proposed to be established by the witness are not in the record, and that this alleged error cannot therefore be noticed. If the objection had been merely as to the relevancy of the testimony, and not as to the competency of the witness, this position would be correct; as the question of relevancy, and consequently the alleged error of the court below, could not be determined without an inspection of the testimony.
But the question is wholly different when it relates merely to the. competency of the witness. The record states, that the plaintiffs offered the witness to prove their case, and it must be inferred in the absence of any showing to the contrary, that if the court had permitted the witness to testify, this proof would have been made.
It is next assigned as error that the court below erred in ruling out the deposition of Angus Fairley, also a distributee of the estate of the intestate. The deed executed by this witness, with a view of rendering himself competent, not resting upon a valuable consideration, and not being accompanied with the possession of the property, cannot operate either to transfer his title or to estop him from asserting title hereafter, if so disposed. We are therefore of opinion that the court below committed no error in this respect.
Judgment reversed, new trial granted, and cause remanded.
