Woodman v. Skeetup , 35 Me. 464 ( 1853 )

Shepley, C. J.

— Ephraim Woodman having conveyed a farm with covenants of warranty to John Robbins, 2d, from whom the demandant derived her title, was offered as a witness for the demandant, who had executed a release to him of all liability on his covenants. The objection was to his competency on account of interest. The release was made a part of the case. It is said, that it cannot now be found. It was the duty of the tenant to present copies of the exceptions with the documents referred to.

As the case has been presented by the tenant for decision, he cannot properly object to a decision upon the exceptions and the documents presented. There is no reason to conclude, that the release was not correctly described in the bill of exceptions, and therefore no reason to conclude, that the witness was not properly admitted to testify.

It is said, that he should not have been permitted to testify to the loss and contents of the deed before its existence and execution had been proved by other testimony. The statement in the bill of exceptions is, that he was called to prove its execution as well as loss. There does not appear to have been any objection made to his testimony, if he was a competent witness, and an objection not presented at the trial cannot now be received.

In the course of his testimony it appeared, that he was the mortgagee of the premises demanded, by virtue of a conveyance executed by the demandant to secure the payment of a note then due to' him. It does not appear to have been executed since the commencement of this suit. He thereupon executed a release to the demandant of all title to the premises by virtue of that mortgage and delivered the same to the attorney of the demandant in her absence. The objection is, that the release was ineffectual, there being no proof of a legal delivery or acceptance of it, and that the witness continued to be interested. The consideration of the effect of the release is unimportant, if the witness was not interested in the event of the suit in consequence of his position as mortgagee. If the tenant obtained a judgment in his favor in this suit, a copy of the record of it would not be admissible in evidence in a suit upon the mortgage by the witness against the tenant. If the demandant failed to establish her title, the witness in a suit upon the mortgage, made before the commencement of the suit, would not be precluded from establishing it. Nor does it appear that he would suffer loss if he did not; for the note named in the mortgage was not discharged, and the demandant might have sufficient property to pay it, if she did not recover in this suit. The witness does not therefore appear to have had any certain interest in the event of this suit, and he was not rendered incompetent by the disclosure of his position as mortgagee.

. Exceptions overruled.

Tenney, Howard and Appleton, J. J., concurred.