Berg v. McLafferty , 9 Sadler 135 ( 1888 )

Opinion bv

Mr. Justice Green:

We cannot understand upon what principle William Denny was rejected as a witness. He was not a party to the suit and not liable for costs. He made no claim of title to any of tbe land for which this action was brought. He had no interest in the result of the case as he could not use the verdict and judgment in any litigation he might have for other land whether with these or other parties. He was clearly competent, as the law was prior to the act of 1869, and of course he could not be disqualified by that act. An interest in the question involved in the present case is not a disqualifying interest, and we have no doubt of his competency. The first four assignments of error are, therefore, sustained.

The fifth assignment is not sustained. It is practically conceded that Edward McLafferty would be' competent if he were living; and the fact of his death certainly does not render incompetent his testimony taken on a former trial.

The sixth assignment is not sustained. The testimony offered was simply to rebut the supposed effect of Mr. Thompson’s acts, done apparently as counsel for the widow and heirs. As these acts were competent evidence in favor of the defendants it was of course competent to explain them or reply to them by way of contradiction.

The seventh assignment is sustained. The eighth point of the defendants should not have been refused absolutely. The facts stated in the point were such as tended to establish an estoppel, and, if believed by the jury, might suffice to warrant them in inferring an estoppel if there were no- other facts in the case which avoided their effect. The point should not have been framed with the conclusion of an absolute estoppel from the facts stated, and therefore need not have been, and perhaps should not have been, affirmed without qualification. At the same time it should not have been refused peremptorily. In point of fact the court left the facts to the jury upon this whole subject correctly in substance as we think; and there is an inconsistency between that submission and the absolute refusal of the point.

The eighth, ninth, and tenth assignments are not sustained. The eleventh is sustained because the unqualified affirmance of the fifth point of the plaintiffs is a binding instruction to the-jury that the sheriff’s sale to the defendants passed no title. Such an answer is inconsistent with the general charge which does leave to the jury the facts on the subject of estoppel. If the sheriff’s sale passed no title the defendants had no defense.

The plaintiffs’ eighth point is too narrowly drawn, since there may be other facts beyond those stated in the point which might amount to an estoppel; but as those are the chief facts relied upon by the defendants for that purpose, we must suppose that that point was affirmed as it stood, because they constituted the main subject of contention; and in that view the affirmance was substantially correct.

The thirteenth assignment has no merit, and the fourteenth is a clear mistake, since the plaintiffs’ fourteenth point was refused and not affirmed. The remaining assignments are not sustained.

Judgment reversed and venire de n-ovo awarded.