Richardson v. Wright

58 Vt. 367 | Vt. | 1886

The opinion of the court was delivered by

Rowell, J.

It is said in Fitzsimmons v. Southwick, 38 Vt. 509, that in order to determine whether a case comes within the statute excluding one of the original parties to the contract or cause of action in issue and on trial from testifying when the'other party is dead, we must look to matters of substance rather than to technical terms and forms. That was trespass de bonis against the administrator of a woman to whom the plaintiff claimed to have been married, and by virtue thereof to have acquired title to a part of the property in question; and although the technical cause of action was held to be the taking by the defendant from the plaintiff, yet the title was held to he the real matter in controversy, and therefore the plaintiff w;as not permitted to testify to his alleged marriage.

So here, the contract of security evidenced by the mortgage was at most only the formal and technical cause of action; the substantial issue — the. real matter in dispute, was, the character and quality of the transaction-between Wright and Warren that resulted in the cancellation of the original mortgage note and the giving of the new note to Warren, as bearing on the question of the release or non-release of the mortgage security; and to that transaction Conner was not a party. The defence in this behalf does not differ in legal effect from that of payment in money of the mortgage debt by the mortgagor on the same occasion, as to which Conner would clearly have been a competent witness. In Insurance Company v. Wells, 53 Vt. 14, the defendant was held incompetent to testify to a payment claimed to have been made to the payee, who had died. But suppose the claim had been of a payment to the plaintiff after it became the owner of the note, can it be doubted that defendant would have been competent to testify to it?

Itappearing that the new note to Warren was given “in place of” the original mortgage note, the substitution did not operate to discharge the mortgage, it not appearing that such was the intention of the parties. Dana & Hayden v. Binney & Morrison, 7 Vt. 493; Seymour v. Darrow & Brainerd, 31 Vt. 122; Pinney v. Kimpton, 46 Vt. 80.

The case being still pending before the master, it was discretionary with him whether or not to grant a further hearing on the orator’s application; and having exercised his discretion by granting such hearing, his action in the premises cannot he revised.

Decree reversed and cause remanded, with mandate to enter a decree of foreclosure for the orator, with costs.