2 Wash. 422 | Wash. | 1891
The opinion of the court was delivered by
— In 1885 Frank E. Taylor purchased the land in controversy herein, and took a deed therefor in his own name. Soon after such purchase the defendant in this action went upon said land, and has ever since resided thereon. After said Taylor’s death his mother, as executrix of the last will of her husband, obtained a decree of the district
“ Sec. 389. Any person offered as a witness shall not be excluded from giving evidence by reason of his interest in the event of the action as a party thereto or otherwise, but*425 such interest may be shown to affect his credibility: Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased or insane person, or as a guardian of a minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf.”
And this was the law in force at the time of the commencement of this action. It was modified, however, by the Laws of 1889-90, so that the last clause now reads as follows:
“Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person, or as the guardian or conservator of the estate of any insane person, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or any statement made to him by any such deceased or insane person,” etc.
And the law as thus modified was in force at the date of the trial. The law as thus modified seems broad enough to cover a case of this kind, beyond question. It is clear that plaintiff claimed by, through or from the deceased person, and that consequently the declarations of said deceased person to either party to the record could not be testified to by them. But appellant contends that the law in force at the date of the commencement of the action should govern, and not that of the date of the trial. I think, however, that, as these statutes provided only a rule of evidence and did not affect any right, this contention cannot be sustained. But, be that as it may, it can make no difference with the question under discussion; for, under the section of the code above quoted, before it was amended the testimony was equally as inadmissible as after such amendment. The words “legal representative” therein used, in my opinion, were intended to, and did, bring the plaintiff within the
Appellant takes exceptions to the manner in which the objections to the testimony of said defendant were taken in the court below, and if this were an action at law there might be some force in what he says; but it must be remembered that by the answer of defendant this action was made a proceeding in equity, and that in such cases this court looks at tk$ substance of the case as presented below, and not at any technical exceptions or objections made therein. Besides, if I were of the opinion that the testimony of said defendant had been improperly excluded in the court below, and should investigate the rights of the parties in view of all the evidence introduced, including that of the defendant, the result arrived at would not be more favorable to the appellant. The contract as testified to by him was clearly a unilateral one, under which all the rights were on his side, and none on that of the other party. By the terms thereof, he was to be allowed to buy at any time within ten years, but was under no obligation to buy at all, unless he saw fit to do so. Such a contract could only be enforced in a court of equity where it appeared that one acting thereunder had made great improvements, or otherwise put himself in such a situation that it would be unconscionable to deprive him of the benefits of the position into which the acts of the other party had led him. Defendant’s own statement, however, shows that this is not such a case; for, while it is true that
The case made by defendant, even upon his own showing, is insufficient to authorize a court of equity to interfere with the title to the land. To authorize such action a clear case must be made, not only as to the equities which the proof tends to show, but as to the proof itself. The equitable defense failing, and the title of the plaintiff being admitted, she was entitled to the possession of the land, and the judgment of the lower court in so decreeing will be affirmed.
