72 Ind. App. 439 | Ind. Ct. App. | 1917
—This is an action brought by appellees against appellants to quiet their title to an undivided three-fourths part of certain real estate. The record discloses that this cause was put at issue by an answer in general denial and a trial had, resulting in a judgment in favor of appellees; that thereafter appellants obtained a new trial as a matter of right; that subsequently to the granting of such new trial appellants filed an affirmative paragraph of answer, which was afterwards, on motion of appellees, stricken out ,by order of court; that appellants subsequently by leave of court withdrew their answer in general denial, and asked leave to file an affirmative answer, which they duly tendered; that the court refused such leave and rejected such tender; that appellants thereupon
Appellants contend that the court erred in giving this instruction, as it informed the jury, in effect, that it might consider the evidence given by the witnesses named, as tending to prove substantive facts which it might consider in determining the mental condition of the grantor, Sarah C. Kaufman. In considering this contention it should be borne in mind that this is a suit by heirs to obtain title to property in the right of an ancestor within the meaning of §522 Burns 1914, §499 R. S. 1881. Under the provisions of this section none of the parties to the suit were competent witnesses as to any matter which occurred prior to the death of sucia ancestor, and under the provisions of §525 Burns 1914, §501 R. S. 1881, the husbands and wives of the respective parties were likewise incompetent to testify to such facts. Terry v. Davenport (1916), 185 Ind. 561, 112 N. E. 998. In this case, however, the mental capacity of such ancestor to make the deed in question was in issue. This warranted appellees in calling witnesses to testify upon this issue, and in so doing to give opinions as to whether such grantor was of unsound mind. The parties to the action, and their respective husbands and wives, were competent witnesses for the purpose of giving such opinions. Studabalter v. Faylor, supra; Keys v. McDowell (1913), 54 Ind. App. 263, 100 N. E. 385. This necessarily required them to testify to matters which occurred prior to the death of such ancestor, as a foundation for such opinions, so that the jury might have a means of weighing the same, but such testimony could not be considered as tending to establish any of such matters as substantive facts to be given weight in determining the
Other questions presented on this appeal are not considered or determined, as they may not reoccur on another trial of. the cause. For the reasons stated, the judgment is reversed, with instructions to sustain appellants’ motion for a new trial, and to such other proceedings as are not inconsistent with this opinion.