| Neb. | Jul 15, 1874
In this action the plaintiffs ask for a decree of the court, declaring that the defendants hold a certain tract of land in trust for the plaintiffs, and that a conveyance be made by said defendants to plaintiffs, and also that an account of rents and profits of the premises be taken, etc.
The principal facts in the case are that, on the 16th day of August, 1862, Asbury Wamsley and Polly, his wife, by deed absolute, with general warranty, sold and conveyed the land to Jesse Crook, and on the 22d day of October following, Jesse Crook and wife sold and conveyed the same lands to defendant, Hall. The deed, however, from Wamsley and wife to Crook, was intended to secure the payment of a debt, owing by Wamsley to Crook. At the time the sale was made by Crook to Hall, Asbury Wamsley was in the military service of the United States, but Polly, his wife, was present, consenting to the sale, and at the same time it was agreed and arranged by the parties that out of the purchase money to be paid by Hall, he should first pay the debt due Crook, then pay Mrs. Wamsley $150, and by direction of Mrs. Wamsley, that he execute his note to her payable to her, for the balance of the purchase money. This was done. Mrs. Wamsley says that after the sale to Hall she advised her husband, Asbury, of the transaction, and that he directed her to take the money and go to Ohio if she wished, and take care of the remainder until his return.
The proofs in the case were taken before a referee, appointed by the district court for that purpose, and upon the filing of his report a motion was made by plaintiffs to suppress the testimony of Crook and Hall, the defendants, which motion was sustained. Now the two material questions raised in the argument of the case, are: 1. Did the district court err in suppressing the testimony of the defendants? 2. Did the court err in “ finding that the plaintiffs are not entitled to any relief as prayed in their bill, and the dismissing of said bill at costs of plaintiffs?”
In respect to the first question, the statute provides that no “person having a direct legal interest in the result of any civil cause or proceeding, shall be a competent witness therein, when the adverse party is an executor, administrator, or legal representative of a deceased person.” General Statutes, Sec. 329, p. 582.
It is said that “ in legal parlance, the executor or administrator is most commonly called the legal representative. In regard to things real the heir is also the legal representative, and so is the devisee, who takes by purchase; and the assignee or grantee is also a legal representative of the assignor or grantor, in regard to things assigned or granted.” And it is also said that “ general expressions in law must be construed to have a general application, unless there be clear indication that they were intended to be used in a restricted sense. Representative is one who exercises power derived from another.” Grand Gulf R. R. v. Ryan, 8 S. & M., 275. Davis v. Davis, 26 Cal., 37. Kelton v. Hill, 59 Me., 259.
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 not be a competent witness. Whatever may be the ground of his claim, he is excluded as a witness in the case. Hence the court did not err in sustaining the motion to suppress the testimony of defendants.
In respect to the second question, it may be first observed, the doctrine seems to be well settled that if a conveyance of realty shows upon its face to be in fact a mortgage, its character cannot be affected by any agreement between the parties as to the redemption or other incidents of a mortgage, for the right of redemption attaches as an inseparable incident, created by law, and cannot be waived by agreement. 1 Wash. Real Estate, 496. Wing v. Cooper, 37 Verm., 181. But “ where an absolute deed is given accompanied by a simultaneous instrument, operating by way of defeasance, and after-wards the parties, by fair mutual stipulations, agree that
Mrs. Wamsley consented to the sale of the land to the defendant Hall, and her husband, then in the army, being advised by her of the transaction, directed her to take the purchase money. Their only title to the money depended upon the effect of the sale, in divesting the first grantee of any estate in the land, and converting that estate into money by passing the title .to purchaser Hall. It was upon this ground alone, in law or equity, that the Wamsley’s could take the purchase money. And the receipt and acceptance of the purchase money, was an affirmation that the title had passed to Hall, the purchaser, by virtue of the deed from Crook to him. It is a well settled rule of law that one cannot be permitted to receive both the purchase money and the land. And the application of this principle of estoppel “does not depend upon any supposed distinction between a void and voidable sale. The receipt of the money, with the knowledge that the purchaser is paying it upon an understanding that he is purchasing a good title, touches the conscience, and therefore binds the rights of the party in one case as well as in the other;” and it is said that “equitable estoppels of this character apply to infants as well as adults, to insolvent trustees and guardians as well as persons acting for themselves, and have place as well where the proceeds arise from a sale by authority of law, as
Decree affirmed.