40 Vt. 153 | Vt. | 1868
The opinion of the court was delivered hy
The only point that is brought in question by the excepting party, is as to the competency of the defendant, as a witness, to testify to certain facts.
The plaintiffs are executors of said Ford, and have brought ejectment, before a justice of the peace, for lands of which the testator had the absolute title by virtue of decree of foreclosure of the court of chancery. The defendant, the original owner and mortgagor, had remained in possession, under some contract or arrangement with the testator, after the decree became, absolute, and after the decease of the testator. This action was brought by the executors. The defendant bases his defence upon his being rightfully in possession, in virtue of said contract or arrangement with the testator. Mrs. Ford, widow and executrix of the testator, now one of the plaintiffs, as a witness, testified to a certain conversation she had with the defendant soon after her husband’s death, and before the will was proved, which bore directly on the issue as to said alleged contract or arrangement, and tended to show that it was not such as the defendant claimed it to be. The defendant offered himself as a witness to contradict that testimony of Mrs. Ford, and to show what, in fact, was said between them.
The county court, on objection, held that he was not competent for that purpose ; and hence the question now to he decided. To the contract and cause of action in issue, the testator and the defendant were the original and only parties. The testator was dead. No person was living and competent to testify with whom the contract in issue was originally made. The acts and contracts about which he proposed to testify, whether originally done and made with the testator, or with Mrs. Ford, were not done or made after the probate of
The judgment is affirmed.
