Leiter v. Grimes , 35 Md. 434 ( 1872 )

Grason, J.,

delivered the opinion of the Court.

The questions as to the admissibility of the evidence, objected to in the first and second exceptions, we regard as altogether immaterial. The instructions, granted at the instance of the appellants, required the jury, if they should find the facts set out in the instructions, and that the deed from James Grimes to the appellee had been executed with intent to hinder, delay or defraud his creditors, to find their verdict for the appellants. It is manifest that, if the jury believed the deed to be bona fide and for valuable consideration, the admission in evidence of the mortgage from James Grimes to Rentch, and the assignment of it by Rentch to the appellee, and of the facts accompanying such assignment, could not properly affect the case one way or the other; and if the jury believed the deed to be a fraud upon James Grimes’ creditors they were instructed by the Court, in effect, that the mortgage and assignment and the facts accompanying the assignment, did not stand in the way of their finding their verdict for the appellants. Under these instructions, the evidence set out in these two exceptions and admitted by the Court could not by possibility injure the appellants, even if it was inadmissible, a question we do not deem it necessary to decide.

(Decided 19th March, 1872.)

The third and fourth exceptions were taken to the rulings of the Court as to the competency of the appellee as a witness and to the admissibility of the testimony he gave.

The suit was not upon a contract or cause of action, one of the original parties to which was dead, nor was an executor or administrator a party to the suit. It was an action of ejectment between parties, all of whom were living at the time; and although the deed from James Grimes, who was then dead, to the appellee came incidentally in question, he was certainly not excluded from testifying under the Act of 1864, ch. 109, or 1868, ch. 116. Smith vs. Wood, 31 Md, 296. Being a competent witness the evidence he gave of the facts and circumstances connected with and accompanying the agreement between himself and James Grimes, as well as those preceding and accompanying the execution of the deed, Avas clearly admissible for the purpose of rebutting the evidence of fraud introduced by the appellants, and showing the bonafides of the deed, and that it Avas executed for a valuable consideration. Cook vs. Cook’s Ex’r, 29 Md., 550.

The judgment of the Court below must therefore be affirmed.

Judgment affirmed.