43 Neb. 840 | Neb. | 1895
These two cases are based on separate records, but they present the same state of facts and were apparently tried •together, under a stipulation which provides that the evidence taken in one shall be considered in the other, with the exception of the evidence of James W. Wylie. They are founded on the same contract and, while presenting some
In the case of Mrs. Wylie the ground of the appeal is that the decree is not sustained by the evidence. It is not urged that the court erred in admitting the husband’s testimony. One point relied upon is that the contract proved did not, with sufficient certainty, describe the land. It is true that Wylie’s testimony is simply to the effect that Mrs. Charlton agreed to convey to her daughter “one of the eighties.” This would be uncertain standing alone, but .there is evidence that when the plaintiffs moved upon the land they occupied a sod house standing on the quarter section, and that Wylie thereafter erected a barn across the section line road on the eighty-acre tract claimed by Mrs.
The case of James Wylie presents a different aspect. It lacked all direct proof of the contract relied upon to sustain it. The only evidence to sustain the case was proof of possession by the Wylies, and of improvements made on the land. There was the same evidence as in Mrs. Wylie’s case to meet this and, in addition thereto, the evidence as to Wylie’s filing a claim against the estate for the improvements, and as to his declarations was competent and entitled to some weight. The declarations were somewhat ambiguous, and perhaps entitled to little weight, and his act in filing the claim against the estate was by him explained in such a manner that the trial court might have been justified in accepting the explanation and giving little or no force to his act; but there being no evidence in his case to establish the contract, except that afforded by his possession and by the making of improvements, and the evidence of declarations by Mrs. Charlton, and there being, on the part of the defendants, some evidence of declarations contrary to his claim of right, evidence of his making a claim against the estate, inconsistent with that claim of right, and in addition thereto to circumstances presenting at
Many years ago it became apparent that the common law rule rendering incompetent as witnesses all persons interested in the result of an action was impolitic, and not adapted to the institutions of modern civilization. The injustice done by excluding such witnesses was manifestly a greater evil than that resulting from admitting their testimony and thus affording a temptation to perjury. The legislatures then began to make inroads upon the rule until the broad step was taken which has been embodied in our Code of Civil Procedure, of enacting that every human being shall be a competent witness in all cases, except under certain contingencies expressly provided for. (Code
In Iowa it is held that a party adverse to the representative of a deceased cannot examine a witness as to a conversation with the deceased when such witness is interested on behalf of the representative and adversely to the party calling him. (Neas v. Neas, 61 Ia., 641; Ivers v. Ivers, 61 Ia., 721; Donnell v. Braden, 70 Ia., 551.) But these cases construe a statute which provides: “No party to any action or proceeding, nor any person interested in the event thereof, * * * shall be examined as a witness in regard to any personal transaction or communication between •such witness and a person at the commencement of such examination, deceased, insane, or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person,” etc. (Iowa Rev. Stat., sec. 4889.) The language of this statute is quite plain, although it extends the prohibition beyond the reason thereof. So in Ellis v. Alford, 64 Miss., 8, a husband and wife joined in a bill to have the wife’s conveyance of her separate estate canceled on the
It will be observed that Mrs "Wylie was interested on both sides of the record. If the plaintiff prevailed, she would become entitled to an inchoate estate of dower as the plaintiff’s husband. If the defendants prevailed, she would be entitled apparently to a one-fifth interest in the land as heir of her mother. Three questions are in effect thus presented: First — Was her interest, as the wife of the plaintiff, such a direct legal interest as to disqualify her? Second — Was her interest, as heir, such as to disqualify her when called to testify adversely to that interest? Third — Assuming that either or both of such interests rendered her incompetent, did the fact that she was interested on both sides remove the disqualification ? In solving these questions some allusion to the common law may be useful, if not necessary. It must be remembered that at common law any interest in the event rendered a witness absolutely incompetent and that such interest was not necessarily a direct or a legal interest. It was said: “The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.” (1 Greenleaf, Evidence, sec. 390.) It was also said that such interest must
It still remains to be considered whether the fact that Mrs. Wylie was interested on both sides of the record rendered her competent. At common law it was said that if the witness is equally interested on both sides he is competent, but if there is a certain excess of interest on one side he will be incompetent to testify on that side. (1 Greenleaf, Evidence, 391.) An inspection of the cases upon which that statement is based discloses, however, that the courts did not attempt to weigh different interests, one against the other, but admitted the testimony only where the interest was precisely the same. Thus, in Ilderson v. Atkinson, 7 T. R. [Eng.], 480, a witness was held competent because, whichever way the action resulted, he was bound to pay the amount involved, according to its event, either to one party or to the other.' To the same effect is Birt v. Kershaw, 2 East [Eng.], 458. In other cases, a witness was held incompetent because, while there was an equal liability in one way on either side, the success of the party calling him would relieve him from a distinct and additional liability. (Jones v. Brooks, 4 Taunt. [Eng.], 464; Larbalestier v. Clark, 1 B. & Ad. [Eng.], 899.) Where interests are precisely equal on either side, it may be that the case is out of the reason of the common law, although not out of the letter of our statute; but where there is an interest adverse to the representative of the deceased, we do not think that the courts, without any standard of comparison, should attempt to weigh that interest against an
Affirmed.