31 Mo. 226 | Mo. | 1860
delivered the opinion of the court.
This was a suit to compel a specific performance of parol agreement to convey lands. The statute of frauds was not
It is objected that the court erred in permitting Ann MeCullough, the mother and guardian, who conducted the suit in the name of the wards, to be sworn as a witness. It is said that she is a party to the suit. But is the guardian who carries on a suit in the name of his ward any more a party to the suit than the attorney who conducts a suit for an adult ? A person of age sues by attorney, a person not of age sues by guardian : why is the guardian any more a party to the suit which he prosecutes than an attorney is to that which he conducts ? But it is said that the guardian is liable for the costs of the suit if it fails. No doubt he is so, and it was that which disqualified him as a witness when the coipmon law rules of evidence prevailed; but as now by statute interest does not incapacitate a witness, a guardian is as competent a witness as an attorney. (Murphy v. Murphy, 24 Mo. 526.)
But as the plaintiffs who are prosecuting this suit are the heirs and children of the husband of the guardian with whom the contract for the conveyance of the land was made, it is maintained that if the heirs succeed in this suit, then the mother and guardian will be entitled to dower in the land recovered, and that the judgment will establish her right to it, therefore the suit is prosecuted for her immediate benefit. Although the plaintiffs succeed in this action, as another action will be necessary in order that the guardian may obtain her dower, it can scarcely be maintained that the suit, in the ordinary acceptation of the phrase, is prosecuted for her immediate benefit. The most that can be said is, that she has an interest in the judgment, as it will be evi
the judgment will be affirmed.