Jackson v. Johnson , 126 Miss. 26 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

The appellant, as plaintiff in the circuit court, made affidavit before the circuit clerk under section 3044, Code of 1906 (section 2402, Hemingway’s' Code), in which.affidavit she stated that she was employed by Andrew Johnson during the year 1919 as a share cropper, and assisted in making a.crop of three bales of cotton which were, at the time of the making of the affidavit, in the possession of the defendant, Cornelia Johnson; that under this contract she. was entitled to half of this cotton, the value of same being four hundred thirty-five dollars; that Cornelia Johnson withholds the same from her, and that she claims a lien on this cotton. The plaintiff then filed a declaration, setting forth the same grounds averred in her affidavit. Cornelia Johnson, under oath, traversed every allegation of the declaration and affidavit, and claimed that all of the cotton in.controversy, with the exception of five hundred fifty pounds, was grown on lands wholly cultivated by Cornelia and her children; that the five hundred fifty pounds of seed cotton was taken from the lands which plaintiff claimed to have cultivated.

The plaintiff was first placed on the stand by her attorneys, and an objection was interposed to her testifying, to which objection the court reversed its ruling. Plaintiff then testified that she was living on a little place which had belonged to Andrew Johnson during his lifetime; that she made a contract with Andrew to make a crop on the place for that year; that Andrew agreed to furnish her ten dollars a month, and she was to have one-half of the crop; the crop was to be worked by herself and two children ; that she and the children worked the crop, and were practically ready to lay it by on the 3d of July, on which date Andrew Johnson was killed by his wife, Cornelia, the defendant in this case. That after Andrew was killed she had a conversation with the defendant, Cornelia Johnson, and it was agreed between them that she should continue to make the crop for one-half of it, and Cornelia was to furnish her some rations; that this contract was carried out between herself and Cornelia until cotton picking time, but that, after she and her children had picked a day and a half in this crop, Cornelia forced them to leave the place, and would not permit them to gather the crop; that during the day and a half they picked the cotton Cornelia and her children also picked with plaintiff and her children, and this cotton was all stored in the house where plaintiff was then living, but that subsequent to the time the defendant compelled the plaintiff to leave the place all of the cotton was moved down to the place where Cornelia was living, a distance of about two miles. That the defendant Cornelia continued to live in the house where she and her husband had lived.

The testimony in the case does not show that any letters of administration upon the estate of Andrew Johnson were taken out, but that, so far as the little place upon which the plaintiff lived was concerned, Cornelia assumed, and was actually in charge of, and handling, this part of the estate. In other words, Cornelia was at least an executor de son tort to this extent.

The plaintiff offered to prove by. a witness námed Frank Johnson that during the lifetime of Andrew Johnson he had a conversation with Andrew relating to the contract between Andrew and Amanda about her making this crop. Counsel for the defendant asked the witness if Cornelia Johnson Avas present at the time, and, upon her replying that she was not, interposed an objection to the testimony of this witness about the statements of Andrew as to this contract, and the court sustained this objection, and would not permit, this testimony to be given.

At the conclusion of the plaintiff’s testimony, upon motion, all of it Avas excluded, and a peremptory instruction given for the defendant, and judgment thereupon entered in favor of the defendant.

The affidavit of the plaintiff and her declaration basé her right to this lien upon her contract with Andrew Johnson. Neither in the affidavit nor in the declaration does she base this claim upon any subsequent agreement made with Cornelia Johnson, who was in charge, or who seems to have been in charge, of the estate of the deceased. The subject-matter of this litigation, namely, the cotton, is a part of the estate of Andrew Johnson. In the case of Love v. Stone, 56 Miss. 449, this court held that the test of the competency of a witness in this class of cases is Avhether the estate of the deceased person was the subject-matter of the litigation in which the party is offered as a Avitness. And in Jacks v. Bridewell, 51 Miss. 881, it is held that — “The exclusion, is not confined to cases in which the controversy is between him who would testify to his ‘claim/ or ‘right/ and the administrator or executor of the deceased person, but it extends to every assertion of such right by a party to any part of the estate left by a deceased person, and claimed by such party, ... by reason of an alleged transaction between such party and the deceased person.”

These eases are cited with approval in Jackson v. Smith, 68 Miss. 53, 8 So. 258.

The testimony of the plaintiff, Amanda Jackson, to the contract made between herself and Andrew Johnson was testimony to establish her claim arising during the lifetime of the deceased to his estate, which is the subject-matter of this controversy, and was therefore inadmissible under these authorities. Her testimony as to her subsequent contract with the defendant was inadmissible because she failed in her pleadings to alleged any such subsequent contract.

The court should have permitted the witness, Frank Johnson, to testify to the conversation between himself and Andrew Johnson with reference to the contract between Amanda and Andrew about this crop. These statements of Andrew were declarations against interest, and accordingly are admissible. In Baldridge v. Stribling, 101 Miss. 666, 57 So. 658, with reference to declarations of this character, the rule is there laid down that they are admissible Avhen made by a deceased person as to facts presumably within his knoAvledge if relevant to the matter of inquiry:

“First. When it appears that the declarant is dead. Second. That the declaration was against his pecuniary interest. Third. That it was a fact in relation to a matter of which he was personally cognizant. Fourth. That the declarant had no possible motive to falsify the fáct declared.”

For the exclusion of this testimony, the judgment of the lower court Avill be reversed, and the cause remanded.

Reversed and remanded.