105 S.E. 337 | N.C. | 1920
On the trial it appeared that plaintiff is in possession of the land in question claiming to own same under a deed from W. L. F. Woods and wife, Laura, dated 22 February, 1919, duly proven and registered said deed containing a stipulation by way of condition subsequent that the grantee would maintain said grantors during their lives, and on their deaths, see that they were properly buried, etc. It also further appeared that defendant claimed the land under a deed purporting to have been made by said W. L. F. Woods and wife, acknowledged by the grantors before a justice of the peace, E. A. Voyless, on 1 February, 1912, and placed upon the registration books on 6 December, 1912, and that W. L. F. Woods died on 24 February, 1920. Plaintiff contending, as stated, that the deed under which defendant claimed had never been delivered, introduced Laura Woods, the surviving widow, and one of grantors in said instrument, and proposed to prove by said witness, in effect, that the deed was never delivered to defendant, that it was prepared and acknowledged before a justice of the peace with a view to its execution, and was not to be delivered till Worth Woods executed a bond for the support and maintenance of grantors while they lived; that finding such stipulation was not in the deed, and no bond had been prepared, the witness took charge and control of the deed, and put it in her bureau drawer, where it stayed unregistered for about six months; that defendant then lived with the grantors, and on one occasion after the deed had been acknowledged witness and her husband went to Murphy on a visit, leaving defendant at home, and soon after getting to Murphy, she met defendant, who had also come to town; that witness remained two days at Murphy, and some time after she returned home she found that the deed in question had been taken from the bureau drawer without her knowledge or consent, and that later she learned that the same had been registered. On objection, the pertinent portion of the proposed testimony was excluded by his Honor on the ground, as argued before us, that the husband being dead, the surviving widow was incompetent to testify under sec. 1631, Revisal, but in our opinion the ruling cannot be upheld. The section of the statute referred to was enacted to prevent a party to a suit from testifying as to a transaction against the estate or interest of the other party, when the latter is dead and *633
unable to give his version of the matter. The inhibition operates, and is intended to operate as to adverse parties to the transaction. In the case here presented the transaction is between the husband and the wife on the one side and the defendant, the alleged grantee, on the other, the later being alive and present, and the proposed evidence of the surviving wife is neither within the terms or purpose of the law. The pertinent decisions construing this section are all in support of this view. Lehew v. Hewett,
For the errors indicated, the plaintiff is entitled to a new trial, and this will be certified that the judgment of nonsuit be set aside, and the cause be further proceeded with in accordance with this opinion.
New trial. *634