Straw v. Greene , 96 Mass. 206 ( 1867 )

Wells, J.

The mortgagor, Adam Wiley, was properly joined in the suit, as a party defendant. The plaintiff was entitled to have judgment against him, as well as against the assignees of the mortgage, “ whether he then had any estate in the premises or not; ” and was not bound to accept the disclaimer offered, nor to take issue upon it. Gen. Sts. c. 140, § 8. The court rightly refused to order a nonsuit in favor of Wiley.

One of the “ original parties to the contract or cause of action in issue and on trial ” was dead. Wiley was “ the other party,” and he was also a party to the suit. He could not be a witness at all, therefore, to testify in his own favor. The court rightly refused to permit him to disprove the validity of his debt to Brown. Permitting him to testify for the defendants as to a particular matter did not entitle them to make him a general witness, nor in any degree remove the restrictions of the statute. Any testimony which would tend to defeat Brown’s demands, for security of which the plaintiff sought to enforce the mortgage, must be regarded as testimony in favor of the principal debtor, as well as of the owner of the equity.

Exceptions overruled.