Ballard v. . Ballard , 75 N.C. 190 ( 1876 )

One Kilpatrick executed the bond sued on to Council Gooding, who, it is alleged, assigned it to J. F. Wooten, who endorsed it to the plaintiff. Council Gooding assigned the bond to Wooten by making his mark (X), which was attested by J. Gooding. Upon the death of Council Gooding the attesting witness, J. Gooding, became his administrator and is the defendant in this action.

J. Gooding was called by the plaintiff to prove the endorsement of the intestate to Wooten and, under objection, did testify in substance that he did not witness the endorsement and that it was not his signature as attesting witness. The plaintiff then introduced J. F. Wooten, the assignee, and under the same objection proved by him that he saw J. Gooding write his name as witness to the assignment. Was either Gooding or Wooten a competent witness for the purpose for which he was examined?

It is not by becoming a party to the action, or a party in interest, that a person is excluded from becoming a witness in a matter affecting the estate of the deceased sought to be charged; but whether a party or not, and whether having an interest or not, such person is a competent witness for all purposes except "in regard to any transaction or communication between such witness and a person at the time of such examination, deceased," etc. C. C. P., secs. 342, 343. Both Gooding and Wooten were, therefore, competent for all purposes except to prove a transaction or communication between them and the deceased.

J. Gooding was the administrator of Council Gooding, and as such had a direct interest in the result of the action, as being the (192) defendant sought to be charged. But he was introduced by the plaintiff to prove a transaction between himself and the intestate, to wit, that he was called on by the intestate and Wooten to attest, and that he did attest the execution of the assignment from the intestate to Wooten. He was an incompetent witness to prove the transaction.

But Gooding was a competent witness at the time of the alleged attestation, and having become incompetent by the act of the law, on his appointment as administrator of the intestate, it was competent to prove by other testimony his handwriting as the subscribing witness to the assignment. 1 Strange, 34; McKinder v. Littlejohn, 23 N.C. 66; Saundersv. Ferrell, 23 N.C. 97; Ellis v. Hetfield, 1 N.C. 71.

This proof the plaintiff attempted to make, and introduced for that purpose J. F. Wooten, the assignee of the intestate. Wooten then had, or had had, an interest in the matter of the action, as the assignee of the intestate and the assignor of the plaintiff. That, however, did not disable him from proving the handwriting of the attesting witness Gooding.

In Peoples v. Maxwell, 64 N.C. 313, it was held that although it was competent for the plaintiff to prove the handwriting of the intestate of the defendant, it was incompetent for him to prove that he saw the intestate actually sign a particular paper. The distinction is that handwriting is proved by a general knowledge of it, and the proof is abstract, and as applicable to one case as another. But proof by him that he say the deceased sign a particular paper is proof of a transaction between him and the deceased.

In our case Wooten, the assignee, it is true, was not called to prove directly the assignment to him by the intestate, but he was called to prove, and did prove, that he saw J. Gooding "sign his name as a witness to the endorsement of the intestate, Council Gooding." The signature of the intestate was a cross mark, incapable of identification and proof without an attesting witness; whereupon the defendant Gooding was called in by the parties as this witness to the (193) ceremony of transferring the bond from the intestate of Wooten. And now Wooten, a party to that "transaction," is called to prove, and under objection does prove, all the facts necessary to make effectual this transaction between him and the intestate, to wit, that he saw the defendant sign his name as a witness. He thus indirectly but conclusively testifies to a transaction between himself and a person since deceased. The case falls directly within the principle established in Peoples v.Maxwell, above cited, and Whiteside v. Green, 64 N.C. 307; Murphyv. Ray, 73 N.C. 588; McCandless v. Reynolds, 74 N.C. 301. The witness Wooten, having endorsed the bond to the plaintiff with a guaranty, the result of this action, of course, can affect his interest or the interest previously owned by him. C. C. P., sec. 343. We are not disposed to relax the common law rules of evidence beyond the innovations clearly established by he recent Legislature. There is error.

PER CURIAM Venire de novo.

Cited: Thompson v. Humphrey, 83 N.C. 418; Carey v. Carey, 104 N.C. 174;Bright v. Marcom, 121 N.C. 88; Johnson v. Cameron, 136 N.C. 244;Zollicoffer v. Zollicoffer, 168 N.C. 329.

Dist.: Loftin v. Loftin, 96 N.C. 99.