52 Neb. 738 | Neb. | 1897
It appears herein that on February 12, 1889, Harriet A Perry and S. F. Perry, of defendants in this action, executed and delivered to Fred Y. Robertson, also of defendants, four promissory notes, three in the sum of $1,000 each and one in the sum of $3,500, and to secure the payment of the $1,000 notes and the interest executed and delivered to the payee thereof a mortgage on certain real property in the city of Kearney, Nebraska, and at the same time and place executed arid delivered to Fred Y. Robertson a mortgage on the same property to secure the payment of the $3,500 note and its interest. Both mortgages were filed for record on the one date and at the one time. The note for $3,500 and its accompanying mortgage were sold and delivered to Sarah J. Barry, of defendants in the action, and two of the $1,000 notes and the mortgage securing their payment were sold and assigned to Leander Smith, who subsequently died, and the plaintiffs were duly appointed his executors. The payment of each note was by an indorsement on the back guarantied by the payee, Fred Y. Robertson. It was alleged in the petition in the action, as a part of the cause as against Fred Y. Robertson, that subsequent to the sale of the two $1,000 notes and the mortgage given to secure their payment he had instituted an action of foreclosure of the mortgage, and secured a decree to be entered therein, by which such mortgage was declared a first lien on the property described therein; that he afterwards, in a purposed sale of the property under the decree, procured a fraudulent appraisal thereof to be
During the progress of the trial Fred Y. Robertson was called as a witness, and, over the objections of the plaintiffs generally that the evidence was immaterial, irrelevant, and incompetent, gave evidence by which copies of letters written by him to Leander Smith, whom the plaintiffs represented as executors, were identified, such letters containing a proposition to sell to Leander. Smith the two notes for $1,000 each and the accompanying mortgage, also information relative to the position of the mortgage as an incumbrance, or lien, etc.; also identified some letters in his possession as received from the other party to the negotiations, the entire correspondence constituting the transaction by which the sale of the notes and mortgage was effectuated. When the copies and letters were offered in evidence the counsel for plaintiffs interposed the same general objection, coupled with the specific one that the witness was “a party in interest and called to testify to a transaction with a deceased person,
The question presented is whether the witness had a direct legal interest in the result of the action, or was the evidence within the prohibition of section 329 of the Code, which is as follows: “No person having a direct legal interest in the result of any civil action, or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness unless the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or unless such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having such direct legal interest may be examined in regard to the facts testified to by such deceased person or such witness, but shall not be permitted to further testify in regard to such transaction or conversation.”
The first point for discussion in the determination of the foregoing question hinges on the legal interest, or lack of legal interest, of the witness, in the result of the action. In the body of the opinion in the case, Wamsley v. Crook, 3 Neb., 344, it was said by this court with reference to section 329 of the Code: “The language of the statute is imperative. If a person has a direct legal interest in the result of the cause, when the adverse party is the legal representative of the deceased, he shall
Of the findings of the trial court were the following: “(3.) That afterwards the said defendant F. Y. Robertson sold, assigned, and delivered each of the $1,000 bonds, with coupons attached, with the mortgage securing the same, to the said Leander Smith, the plaintiff’s decedent, and guarantied the payment of the said bonds by his written indorsement thereon, and sold, assigned, and delivered the said bond for $3,500, with the mortgage securing it, to the cross-petitioner Sarah J. Barry. (4.) That from the oral testimony and evidence in the case it appears that the said defendant F. Y. Robertson sold, and the plaintiffs’ decedent took, the said mortgage securing the said three one thousand dollar bonds as a i.ocond and junior mortgage upon the premises therein
This is an equity case and the issues subject to trial by the court. (See sections 279-281, Code of Civil Procedure.) “Where incompetent testimony is given on the trial of an equity case this court, in reviewing such case on an appeal, will presume that such testimony was not considered by the district court.” (Buckingham v. Roar, 45 Neb., 244.) “Where the trial is by the court acting without a jury, it will be presumed on appeal to have acted only on the legal testimony adduced.” (2 Ency. Pl. & Pr., 474.) In the opinion in the case of Willard v. Foster, 24 Neb., 213, it was observed: “The cause, was tried to the court without the intervention of a jury. In causes tlms tried, it has been often held by this as well as other courts that error for the admission of ini
We are required to assume that the trial judge rejected all incompetent evidence and allowed and gave weight to none but competent evidence on the final hearing, or in the consideration and determination of the issues. It follows that we must consider only competent evidence and disregard that which is incompetent, and, if there is sufficient competent evidence in the record to support the finding and decree, affirm it; if not, reverse it; and this regardless of whether our views relative to the competency of any of the evidence apparently agrees or disagrees with the view of the trial court as to the competency of the evidence at the hearing in the district court. We have determined that the portions of the evidence under discussion were incompetent as herein introduced and as, with these thus eliminated from the record, the finding and resultant decree are not sustained by the evidence, the decree must be reversed.
It is argued by the counsel for plaintiffs that if the decree is reversed, inasmuch as the mortgages were executed and also recorded simultaneously, and the question of priority of lien is one of the intention of the parties, usually expressed in some agreement, written or verbal, the record in this case disclosing no indications of the
Reversed and remanded.