42 Vt. 403 | Vt. | 1869
The opinion of the court was delivered by
I. In order for the defendant’s possession to ripen into title, it must have been under a claim of ownership. To prove that he occupied under such a claim it was competent for him to show that while he occupied he asserted ownership by bringing his suit of trespass against others who .attempted to enjoy the premises, and not only that he brought the suit, but also that he persisted in his claim by prosecuting it to a final adjudication. It is immaterial which way that case was decided, but it is not immaterial that it was prosecuted until a decision was reached, and any proper proof of the fact of a decision would almost necessarily carry with it information as to what the decision was. The
II. By the statute the defendant was generally disqualified as a witness, the action being ejectment in favor of an administrator, as stated fully in the exceptions. The question is whether lie comes under the operation of the statutory exception to the general disqualification in such cases. He was offered and received as a witness with respect to a contract, the other party to which “ was living and competent to testify.” This brings him under the benefit of the exception, unless that exception is interpreted as relating only to contracts put in direct issue by the pleadings. Such an interpretation would be too narrow. The words “ contract in issue,” as used in the statute, mean the same as contract in dispute or in question, and relate as well to the substantial issues made by the evidence, as to the merely formal issues made by the pleadings. It is not the object of the statute to shut the mouth of the defendant as to contracts made with parties still living, and competent to testify.
The judgment of the county court is affirmed.