Poole v. McCARTYPoole v. McCARTY
This сase involves the question of whether the “dead man’s statute” disqualifies as a witness one of the two parties to a contract for sale of minerals, where the other party also is living, but has subsequently conveyed to a third person, now deceased, a small fractional interest in the minerals.
Mississippi Code 1942, Sec.
1690
provides: “A person shall nоt testify as a witness to establish his own
Under the present pleadings, appellant Poole brought this action in the Chancery Court of Smith County against apрellee, McCarty, and subsequent transferees by McCarty of mineral interests in certain lands. Its purpose is to reform a contract between them, dated December 7, 1954, for mutual mistake, and to obtain specific performance of the reformed contract. In 1954, McCarty owned the surface and some of the minerаls in the land. He had the right to purchase from the Federal Farm Mortgage Corporation its one-half mineral interest. 7 U. S. C. A., Secs. 1033-1039. By the contract McCarty employed Poole to purchase and recover for him the mineral interest owned by that corporation, at the option of Poole, who was to pay the amount necessary. McCarty agreed to convey to Poole 90 percent of the minerals so purchased. The contract provided that the option should continue for a period of 90 days “from and after this date, including any optional time” which McCarty may have to repurchase the mineral interest from the present owner. The contract was recorded.
The original bill of complaint was based solely upon the contract as written. It alleged that Poole filed application for purchase of minerals in McCarty’s name and prosecuted it with diligence. In May 1955, the Federal Farm Mortgage Corporation offered to convey to McCarty its one-half mineral interest for $240,000. Complainant averred he exercised his option and offered to pay that amount, but defendant refused to carry out the contract, and instead purchased the minerals in his own
The cause was remanded, and complainant amended the bill by adding certain averments as to mutual mistake of the parties in writing’ the 90-day period in the contract. It was averred that both parties intended the 90 days to run from the date when the federal corporation fixed the price. Hence the amended bill prayed for reformation and specific performance. At this second hearing, the chancery court sustained a plea of res judicata. On appeal, this Court rеversed and remanded, holding the original decision in
On the third hearing, defendants filed their answer denying the charges of mutual mistake and the prayer for reformation. McCarty’s transferees also pleaded that they were innocent purchasers for value without notice of any mutual mistake or other agreement. The mineral deed from the Federal Farm Mortgage Corporation to McCarty was recorded on March 8, 1955. Beginning in June 1955, McCarty conveyed various fractional interests to different transferees, аpparently in the aggregate conveying all of the minerals.
On June 4, 1955, he conveyed to Robert T. and Margaret M. McLaurin a 50/280 mineral interest. On the same date the McLaurins conveyed a 5/280 mineral interest to Jack Deavours. Subsequently, Deavours died, and the cause was revived against his executors. Parenthetically, sincе the instant appeal came to this Court, Dr. R. T. McLaurin died, and the cause was revived also against his executors.
Complainant’s tender of proof was to the effect that Poole and McCarty agreed that, when the corporation fixed a price, Poole would have 90 days from that date within which to elect whether he would pay the purchase price and take a 90 percent interest. Poole would testify that the 90-day clause of the contract was written under a mutual mistake of the parties; and that, when the corporation fixed the price, he exеrcised his option and offered to make the payment, but McCarty refused, and instead purchased all of the minerals for himself. It was also stated that Poole would not testify concerning any conversations between him and Deavours or any agent or representative of Deavours. The defendants then moved to exclude the evidence of complainant and dismiss the bill. This motion was sustained, and this appeal is from that action.
Appellant argues that the original contract was solely between him and McCarty; that the other defendants, including the deceased, Deavours, came into the picture when they bought fractional minеral interests from McCarty. There was no transaction between Poole and Deavours. All of it was between parties living at the time of the trial — Poole and McCarty. The tender of testimony by Poole on the issue of mutual mistake specified that it would not pertain to any transactions between him and the deceased, Deavours. In short, appellant says the incompetency rule of Sec. 1690 does not disqualify Poole as a witness, because he and McCarty, the only parties to the 1954 contract, are both living and available to testify. McCarty’s fractional trans
Although some general statements in various decisions tend to support appellee’s all-inclusive interpretation of Sec. 1690, this fact illustrates the need to keep in sight the purposes of the statute and the controlling facts in the decisions pertaining to it. Note, 6 Miss. L. J. 409 (1934); 2 Wigmore, Evidence (3d Ed., 1940), Sec. 578.
In Shepherd v. Johnston,
In
Shepherd
complainants sued Mrs. Johnston to establish a resulting trust in realty. She had taken the full title to it. Complainants offered to testify concerning an agreement between themselves and defendant’s husband, now deceased, for purchase of the land. By it defendant would take title as security for a loan to complainants by the husband. It was held that the trial court erred in excluding ¡this testimony, since neither the
To the same effect is Clapper v. Powers,
In other words, Poole did not seek to testify concerning a direct claim of his against the estate of the deceased transferee. His direct claim is against McCarty under the contract with him. Whatever claim Poole has against Deavour’s estate is solely of an indirеct or consequential nature. It is not the type of claim to which the statute refers, where both of the parties to the contract in litigation are living and can testify concerning it. They had no dealings with the deceased, Deavours, about it.
These cases illustrate the fact that Sec. 1690 disqualifies only as to direct clаims, not those which are indirect or consequential. In the instant case, both parties to the transaction are living and can testify. Hence the protected area of the statute does not exist. Its object is equality and the prevention of false swearing. The surviving party should not have the benefit of his own testimony where the adversary’s lips are closed
Accordingly, the statute was obviously not intended to apply to a suit between the two living pеrsons to a contract who are both available to testify. 58 Am. Jur., Witnesses, Sec. 339, p. 204, states this principle as follows: “No exclusion exists where a suit is between two living persons on a contract between them although another contract between one of them and a deceased person is a material fаct in the case bearing on the right of recovery. The disqualification does not extend to a party to a different contract from that involved in the action but of similar nature, nor to the guarantor of the contract sued on.” In Cole v. Shurtleff,
A rather close analogy to the instant question arises in those cases where a party makes a contract with two or more joint persons, and one of the joint obligors dies. The rule is summarized in 58 Am. Jur., Witnesses, Sec. 336: “The question of the competency of one party to a contract made or a transaction had with two or more joint parties to testify as a witness to the contract or transaction after one such joint party has died seems dependent upon whether the survivor or survivors were present and participated in the transaction or whether it was in fact with the deceased party alone. Where the joint parties were present and participating in the transaction, or the transaction was Solely with the survivor, the death of one of them does not bring the case within the statute governing testimоny as to transactions with a deceased
In brief, wherе the surviving joint obligor conducted the transaction with the other party to the contract, that is, where both of the contracting parties are living and available to testify, the death of the other joint obligor does not bring the case within the statute. This general rule has been followed in Mississippi. In Faler v. Jordan,
McCutchen v. Rice
&
Co.,
In summary, the exclusion of Poole’s proffered testimony would not promote any purpose intended by the statute. Being an exception to the general rule as to competency of witnesses, it must he strictly construed in favor of competency. Poole and the other contracting party, McCаrty, are both living and available to testify. To disqualify Poole as a witness would tend to create an injustice rather than to prevent one. Any claim against the estate of the deceased transferee of McCarty is purely indirect and consequential, not the direct claim contemplated by Sec. 1690. The Faler and McCutchen cases, denying disqualification where the survivor of joint parties to the contract was the negotiating party, clearly supports this conclusion and our decision that the chancery court erred in sustaining appellees’ objection to Poole’s testimony. He was not disqualified as a witness under Code Sec. 1690.
Appellee cites and relies upon five cases. Duncan v. Gerdine,
Reversed and remanded.