Zerbe v. Reigart , 42 Iowa 229 ( 1875 )

Day, J.

I. The plaintiff took, and offered in evidence on her own behalf, the deposition of Adam Gebhert, who, amongst other things, testified that the circumstances under which the conveyance 'of the land in controversy was made to Henry Shellenberger, were substantially as alleged in the petition. The defendant, Reigart, and the Shellenbergers filed their motion excepting to this portion of the deposition of Gebhert upon the ground that, when his deposition was taken, he was interested in the. result of the suit adversely to the said defendants, and therefore was not a competent witness against them as to matters which transpired before the death of said Henry Shellenberger; and upon the further ground that Gebhert is a person from, through and under whom the plaintiff derives an interest in and title to the property which she seeks to recover in this action. This motion was sustained so far as the deposition of said Gebhert relates to personal transactions had by him with Shellenberger in his lifetime.

This ruling the plaintiff assigns as error. The objection to this testimony is based upon section 3639 of the Code of 1873, which provides that “ no party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, 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, next of kin,” etc.

1. jwidbncjg: a?admmstrator 2__. _. equity. This witness is not shown to have any such interest as would exclude his testimony. The interest which disqualified a witness in an action wherein an administrator is a party must be present, certain and vested, and not uncertain, remote, contingent or doubtful. Wormley v. Hamburg, 40 Iowa, 22. Is the witness excluded under the other provisions of the statute? As the witness is not interested, and hence would have been competent at common law, his testimony ought not to be rejected unless it comes clearly within the prohibition of this section, for the evident purpose of the chapter upon the subject of evidence is to enlarge and not to abridge the sources of testimony. This section excludes the testimony of any person from, through or under whom any party to the action or interested person derives any interest or title by assignment, or otherwise, when such testimony relates to a jiersonal transaction had with a person, at the time the testimony fs offered deceased, and the testimony is offered against the executor, heir, etc. The plaintiff does not derive or claim any interest or title directly from, through or under Gebhert. In virtue of the original sale of plaintiff to Gebhert the legal title never vested in him. The conveyance was made to Graeff in trust for Gebhert. The plaintiff now claims that, in virtue of an arrangement made between Gebhert, as plaintiff’s agent, and Shellenberger, the legal title was conveyed to Shellenberger under an agreement that it was to be conveyed to plaintiff when the $400 advanced by Shellenberger, interest and taxes, should be paid. Without undertaking to put a definitive construction upon this section (3639), which is very peculiar in some respects, it seems tó us that it could not have been the intention in an action against the administrator or heir, concerning real estate, to exclude the testimony of any person, although not interested in the result of the suit, who, at any prior time, may have been the holder of the equitable interest. Unless we are prepared to give this section that broad construction we must hold the witness, Gebhert, competent in this case.

II. Even’ without the excluded testimony of Gebhert we would have some hesitancy in saying that the facts alleged in the petition were not sufficiently proved. "With his testimony we feel fully satisfied that the allegations of plaintiff’s petition are proved, and that she is entitled to the relief demanded.

III. It is urged that plaintiff’s petition should be dismissed because she makes no offer to pay the acknowledged debt. She does, however, allege and prove a tender of the amount advanced, with interest, and the taxes paid upon’ the property. This, we think, is sufficient. The decree for conveyance will be upon condition of full payment, and if that be not made within sixty days from date of decree, thatplaintiff’s rights in the property be foreclosed. Plaintiff may have a decree in this court, if she so elect.

Reversed.