Wood v. Brolliar , 40 Iowa 591 ( 1875 )

Day, J.

I. It is conceded by appellee that, if the plaintiff made the purchase of the property in question with his own i. evidence.: • partfes!en0y means, and caused the conveyance to be made to his wife, the transaction, primas faeie, is to be regarded as an advancement, and that plaintiff must overcome the presumption in favor of the legal title, by sufficient evidence. See Cotton v. Wood, 25 Iowa, 43, and authorities cited. The principal evidence introduced by plaintiff for the purpose of overcoming this presumption, was his own testimony. Aside from his testimony the evidence is altogether insufficient to affect or disturb the legal title. The defendants objected before the referee to the competency of the testimony of plaintiff, and made the admission of his evidence a ground of objection to the referee’s report. Section 3639 of the Code of 1873, provides, in substance, that no party to an action, or 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, against the executor, heir at law or next of kin of such deceased person.

The plaintiff’s testimony in this case was confined almost entirely to personal transactions between himself and his deceased wife. That it was not competent against the defendants, the heirs at law of that wife, a bare statement of the provisions of this section sufficiently shows.

' If it does not inhibit such testimony, we are at a loss to know what it.means, or to what it can refer. There is but one exception to this prohibition; it shall not extend to any transaction or com mnnication as to which any such executor, heir at law, or next of kin, shall be examined in his own behalf. Appellee claims that, inasmuch as plaintiff is an heir of deceased, this exception applies to him, and renders him competent. But, evidently this is not the meaning of the statute.

If an executor, heir at law, or next of kin, is a party to an action, and in his own behalf testifies respecting any personal transaction or communication between the deceased and the opposite party, or a third person interested in* the event of the suit, then such other party or interested person may testify respecting the same transaction. See Canaday v. Johnson, ante, p. 587.

In this case Mary E. Brolliar, one of the defendants, testified respecting a particular transaction between her mother and the plaintiff. This ojjened the way for plaintiff to testify in regard to that particular transaction, but not respecting other and disconnected transactions.

The Code of 1873 was in force at the time of the trial, and its provisions as to evidence apply to this case, notwithstand- „ , 2.-: Code. ing the fact that it was commenced before the Code ° took effect. Wormley v. Hamburg, ante, p. 22. and cases cited. The testimony of plaintiff was incompetent. Without it the evidence was utterly insufficient to establish the trust alleged. It is claimed, however, that plaintiff’s testimony is competent to prove the execution and delivery to him of a quit claim deed, as alleged in the last amendment to his answer. The statute makes plaintiff incompetent to testify to any personal transaction between himself and deceased. That the delivery of a deed to him by his wife is such personal transaction, we think requires no argument. If the delivery of such deed had been proven by other competent evidence, it may be that plaintiff could show by his own evidence the loss of the deed and its contents. But proof of the fact of delivery, we have no doubt, falls within the inhibition of the section above named. The decree for plaintiff is erroneous.

II. The plaintiff admits that he has had possession of the premises in dispute ever since the death of his wife. The referee finds that the rents and profits of one portion of the property, a lot in Yinton, have been $275 per annum. Defendants are entitled to .a decree for two-tliirds the rents and profits, which they may take in this court, or they may have the cause remanded for an accounting and final decree, if they are so advised.

Reyeesed.