Doe ex dem. Crenshaw v. Robinson , 37 Ga. 118 ( 1867 )

Walker, J.

I. By the act of 15th December, 1866, Pamph. Acts, p. 138, Eevised Code, section 3798, no person shall be excluded from testifying by reason of incapacity from crime, or interest,-or from being a party; but every person so offered shall be competent to testify in behalf of any of the parties to the issue on trial, “ provided, that, when one of the original parties to the contract, or cause of action in issue and on trial, is dead, or is shown to the Court to be insane, or when an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.” Was Stamper a competent witness, when he was a party to the record, to the cause of action in issue and on trial, and Robinson, the other party, was dead ? The plaintiff was forced to use the name of Stamper as a lessor, because the deed to Wingo was made pending the adverse possession of Robinson, and was therefore void. During the present term, in the case of Doe, ex dem., Dearmond vs. Roe and Brooking, this Court decided in effect, that the deed from Stamper to Wingo did not convey title out of Stamper so as to prevent a recovery in his name, even when introduced by the defendant for the purpose of showing title out of the lessor of the plaintiff; that the plaintiff could show the adverse possession of the defendant in order to show his own deed to be invalid. Stamper then was a necessary party; the recovery could be had alone in his name, and therefore he was offered as a witness “ to testify in his own favor.” It is admitted that under the law as it stood prior to the passage of the act cited, Stamper was a compepetent witness. Interest then was the test, and it is not insisted that Stamper had any legal interest in the case, so that if he be excluded at all, it must be because of the provisions of the act of 1866. By the act, the fact of being a party does not exclude him, nor does interest exclude; he is not embraced in the fourth section of the act; the question turns upon the construction of the proviso to the first section, already quoted. The act is entitled “ An act to declare certain persons competent witnesses as in the act set out, and for other purposes.” It is not simply to declare certain persons competent witnesses, b.ut to declare them competent “ as in the act set out.” How how are they declai’ed competent as in the act set out ? Why, all parties are competent witnesses, notwithstanding their crimes, or interests, or being parties, “ except as hereinafter excepted.” What are “ hei’einafter excepted ?” “ When one of the original parties to the contract, or cause of action in issue and on trial, is dead, * * * the other party shall not be admitted to testify in his own favor.” What was the cause of action in issue and on trial in this case ? The possession of the lot of land. Stamper proposed to be admitted as a witness in his own favor, to set up his own right of possession and defeat that of Robinson, the other “ original party to the contract,” who was dead. It was to allow Stamper’s version of the “ contract ” between him and Robinson to be proved by Stamper, when Robinson’s version could not be heard, because he was dead. Under this state of facts, Stamper was not declared a competent witness “ as in the act set out,” but was such as were intended to be included among those “ hereinafter excepted.”

2. Wingo was not a competent witness unless made so by the statute. The issue here was between Stamper and Wingo on the one side, and the estate of the dead man Robinson on the other. Wingo was one of the original parties to the cause of action in issue and on trial, and Robinson, the other party, was dead. The statute says, the other party, i. e. the living one, shall not be admitted to testify in his own favor under such circumstances. The rights of the party deceased are to be passed upon, and the statute intended that where such is the case, the other party to the original contract, or cause of action in issue and on trial, should be excluded. If both parties could not be heard, then neither should.

In relation to the executor, it may be sufficient to say we see nothing in the statute to exclude him. As already said, neither his interest, nor being a party, affects his competency ; nor is the other party to the original contract, or cause of action in issue and on trial, dead. Therefore, we think he was a competent witness. See Chisolm, Adm’r, vs. Turner, 36th Ga. R., 565. With the testimony of the executor in, the defence of the statute of limitations was pretty well made out, and the verdict sufficiently supported by the evidence.

Judgment affirmed.