54 Vt. 452 | Vt. | 1882
The opinion of the court was delivered by
It appears from the referee’s report that Albert B. Burke, the defendant’s grantor, in November or December,
On the 1st day of July, 1879, Burke verbally bargained the premises in question (the old homestead) to the defendant, and completed the sale by executing his warranty deed thereof to the defendant, Sept. 2, 1879.
The referee says that when Burke bargained the premises, July 1, 1879, he then elected to abandon the old homestead, and make the other farm his permanent home.
This election removed the homestead protection from the premises in question, and transferred it to the new home. Hence the plaintiff’s attachment of the premises in question, July 7, 1879, created a lien thereon, unaffected by any homestead claim ; and this lien, being followed by proper judgment, levy and set-off, gave the plaintiff a title paramount to that of the defendant under his deed from Burke. The case of Goodall v. Boardman, 53 Vt. 92, is decisive of this.
On the trial before the referee, Burke’s wife was offered as a witness for the defendant, and excluded on the ground that her husband was interested in the event of the suit, by reason of the covenants of warranty in his deed to the defendant. Most of the vexed questions touching the disqualification of witnesses by reason of interest, are now happily of little importance under our statute, removing incompetency on this ground. The common-law rule, that excludes the wife 'of an interested party, however, still remains in force ; and it is urged that Mrs. Burke was within this rule of exclusion.
The rule of the common law is tersely laid down in Buller’s Nisi Prius, 284. “ An interest is when there is a certain beiiefit
Lord Mansfield, in the early case of Abrahams v. Bunn, 4 Burr. 2251, says that the objection of future interest in the witness only goes to his credit, unless the judgment could be given in evidence in the future suit; and Lord Kenyon, in Bent v. Baker, 3 Term. 34, says : “ I think the principle is this, if the proceedings in the cause cannot be used for him, he is a competent witness.” Buller, J., in the same case, lays down the same rule.
The case of Bent v. Baker has always been treated as a leading case upon this subject; and the rule is firmly established that to exclude a witness on the score of a future interest, it must appear that the judgment in the cause in which he is called to testify can be used in evidence, for or against him, in a subsequent case in which he is a party. If such judgment can be so used, the witness is interested and his wife cannot testify. Griffin v. Brown, 2 Pick. 308; 1 Greenl. Ev. (Redfield’s Ed.) s. 389; Williams v. Johnson, 1 Stra. 504.
In the case at bar the defendant stands upon the title derived from Burke under his warranty deed. If the plaintiff in this case recovers, his judgment will be proper evidence in a suit by the defendant against Burke upon his covenant of warranty, to prove an eviction. Rawle Covenants (4 ed.), 217, et seq.; Pitkin v. Leavitt, 13 Vt. 385 ; Mrs. Burke was therefore rightly excluded.
The judgment is affirmed.