Nos. 12,633 — (64) | Minn. | May 10, 1901
Although a large number of questions have been presented and argued by counsel for the appellant in this case, it has resolved itself into a narrow compass, and can be disposed of by considering very few of the assignments of error.
1. The first for examination is that raised by the thirtieth and thirty-first assignments, through which it is contended that it was error for the court to refuse to permit the appellant to testify as to a verbal agreement between herself and the deceased, Charles and Rhoda Lowe, owners of the property described in the complaint, and to prove by parol what that agreement was. The objection to the proof was based upon G. S. 1894, § 5660, which reads:
“It shall not be competent for any party to an action, or interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased * * * party or person, relative to any matter at issue between the parties.”
It is a contention of counsel for appellant that, unless the estate or the interests of the deceased person will be affected injuriously by the adjudication, the word “parties” in the last clause of the section means the survivor to the conversation, who is also a party to the action, or is interested in the event thereof, and the representative of the estate of the deceased party or person, who is also a party, and that the statute does not apply to the appellant in this case; quite a number of cases from other jurisdictions being cited. Should we agree with counsel, and hold that because the plaintiff was not protected by section 5660 we should depart from a number of cases in our reports in which the statute in ■question has been construed.
It has frequently been held that the general policy of the statute is to sustain and exclude the admission of testimony of parties to the action, or of interested persons, as against the estate of the deceased person, or as against the interest of one who has ■succeeded to his rights. In Griswold v. Edson, 82 Minn. 436, 21 N.W. 475" court="Minn." date_filed="1884-11-29" href="https://app.midpage.ai/document/griswold-v-edson-7964573?utm_source=webapp" opinion_id="7964573">21 N. W. 475, this court held that this section makes any party to an .action, or interested in the event thereof, incompetent to testify
The court was also right when it refused to allow the appellant to testify as to the conversation with them relating to a letter and its contents, which letter she had written and addressed to her husband, then in Dakota, in which she stated the terms of the proposition made to her by the Lowes, then, according to the offer, read it to the latter, and gave it to Mr. Lowe to mail. The conversation was inadmissible for the reasons heretofore given. The letter itself was not offered in evidence, but, in connection with the spoken words, the proposition was to show by parol what she read from it to the Lowes, — the contents thereof. That what she stated to the old people was in a letter, then read by her, did not make what she said anything more or of greater force than if there had been no letter. What was said was, of course, spoken words uttered by the appellant or by the deceased. No attempt
As the court ruled correctly when it refused to allow the appellant to testify as to the contents of a letter which she had not brought to the knowledge of the Lowes, except as she read— verbally stated — what was therein contained, it follows that it was also correct when excluding the testimony of appellant’s husband as to the contents. He was not even present when it was read, but received it by mail. In addition, it may be said that he was interested in the result of the case, and for that reason within the ban of the statute. Should the appellant be successful in this litigation, her husband would at once acquire an interest and right in the property which would prevent her from making a conveyance of any part thereof except by his consent. Gf. S. 1894, § 5532, provides that any conveyance or contract for the sale of real estate, or any interest therein, by a married woman, except certain mortgages, leases, and releases, shall not be valid, unless the husband joins with the wife in such conveyance or contract. This gives to a husband an interest and right altogether different from that held by a wife in his lands, and places the former outside of the rule laid down in Madson v. Madson, 69 Minn. 37" court="Minn." date_filed="1897-06-21" href="https://app.midpage.ai/document/madson-v-madson-7969971?utm_source=webapp" opinion_id="7969971">69 Minn. 37, 71 N. W. 824, in which it was announced that a wife was a competent witness for the purpose of showing admissions made by a deceased person concerning the sale of land to her husband. The interest and right which the husband acquires in the real estate of his wife is immediate, direct, and pecuniary. It is not uncertain, contingent, or a possibility, as is the inchoate interest a wife has in the real property of a husband. It is also apparent from the testimony received that he was a party directly in interest, be
2. The court below having rightfully excluded the testimony of the appellant and her husband as to the terms and conditions of the contract upon which she relied and the contents of the letter, the only remaining question upon this branch of the case is whether the testimonj^ which was received was sufficient to compel the court to find that the contract was made, and then to find that there had been such a part performance as to take the case out of the statute. This testimony consisted of statements made by one or both of the deceased persons to third parties, to the effect that if the appellant and her family removed back to Spring Valley she was to have one-half of the property belonging to the Lowes. These were scattered statements, made to different individuals, and, taking them together, they were wholly insufficient to show such a contract as to justify a court in decreeing specific performance. And the court found that, while there was talk upon the subject, it was vague, indefinite, uncertain, and lacked the essentials of an agreement. In so far as testified to, there was no definiteness or certainty of agreement. What the deceased were to do, or upon what terms appellant was, or appellant and her husband, as he seems to claim, were, to have a share of the property, did not appear from the proofs. What appellant and her husband, either or both, were to do, as their part of the agreement, not one of these witnesses attempted to say. There was no mutuality of agreement, for it was not shown that the appellant and her husband were in any manner bound by what was said. A court of equity will not compel the specific performance of an oral contract for the conveyance of real estate,
3. The respondent plaintiff was in actual possession of part of the premises, and, through a tenant who could not dispute his title, he was in possession of the balance. This was sufficient to authorize an action to determine adverse claims.
4. There is absolutely nothing in appellant’s contention that because of some irregularities in the procedure the adoption papers should not have been received in evidence. The decree was valid upon its face, and it had not been modified or set aside. It was in full force as against the appellant in this action.
5. We are of the opinion that there are no other assignments of error which need special consideration.
Order affirmed.