McFerren v. Mont Alto Iron Co. ( 1874 )

Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

If the purpose of the offer embraced in the first assignment was to establish the defendants’ right to the use of the road in question, either under the alleged license or the reservation in the deed of Hughes to Bricker, then so much of the offer as relates to its.use by other persons in the neighborhood was irrelevant; but if its purpose was to show the existence of the road, and that it was located where the defendants claimed the. right to its use under the reservation, there was no error in its admission. Nor was there error in refusing to withdraw the evidence from the jury, as requested in the plaintiff’s fourth point. The court instructed the jury in answer to this point, that “the defendants have not claimed that a public road exists by prescription. They claim under the reservation in the deed, and point to the use of the road by the furnace people and others, for years before the date of the deed, as evidence to indicate the road referred to in the deed, and this is the issue raised by the pleading which we submit to you.” So far as the evidence tended to indicate the road referred to in the deed of Hughes to Bricker, it was clearly admissible, and, under the instructions of the court, this was the only purpose for which it was submitted to the jury.

The next assignment raises the question, whether' the plaintiff was a competent witness: and if so, whether the facts proposed to be proved by him were material and relevant to the issue ? He. purchased the lot up.on which the trespasses alleged to have been committed, from Bricker, to whom Hughes by deed dated March 13th 1854, conveyed it, “ reserving, however, the road as it is.” By a subsequent deed, dated August 1st 1864, Hughes conveyed the adjoining land, known as “ the furnace property,” to the defendants, “ together with all and singular the buildings, improvements, * * * ways, &c., thereunto "belonging, or in any wise appertaining.” Under this deed the defendants claimed the right to the use of the way or road in question, alleging that it was the road reserved in the deed of Hughes to Bricker. The court rej ected the plaintiff as incompetent to prove matters occurring between himself and Hughes, the latter having died before the trial. But was he an incompetent witness for the purpose for which he was offered ? He was not called to testify to anything connected with the sale and conveyance of the lot to Bricker, upon which the trespass is alleged to have been committed, or in relation to the sale and conveyance of the furnace property to the defendants, under which the right of way is claimed. He was offered for the purpose of proving matters having no connection with either conveyance. He purchased from Hughes a lot containing nine acres adjoining the one sold to Bricker. Why was he not competent to prove that there was a road through “ the nine-acre lot ” when he bought it, and that it was then changed to its present location between “ the Bricker lot ” and “ the nine-acre lot ?” That there was such a road, and that its location was changed, were facts independent of the deed for the lot, and wholly unconnected with the contracts between Hughes and Bricker, and Hughes and defendants, which are involved in this action; facts which, if not true, could be disproved by persons in the neighborhood as readily as by Hughes himself, if he were living. Why, then, should the plaintiff’s mouth be closed in regard to these matters, if Hughes was dead? And if not, why was he not equally competent to prove that, when Hughes tendered the deed for the lot it contained a reservation of the road, and that he refused to accept it, and then Hughes had the reservation erased ? The defendants were not claiming a road through “ the nine-acre lot.” Why, then, was the plaintiff not competent to prove the facts for which he was offered ? It is no answer to say that he was not competent because Hughes was dead. The act, allowing parties interested to be witnesses, rendered him a competent witness, unless he is disqualified by the proviso, which declares that the act shall not apply “where the assignor of the thing or contract in action is dead.” If, in legal contemplation, Hughes is to be regarded as the assignor of the alleged right of way over “the Bricker lot,” the plaintiff was not a'party to the transaction, nor was he called- to testify anything concerning it. Surely the proviso was not intended to exclude parties from being witnesses, where the assignor of the thing or contract in action is dead, if they were not parties to the transaction, and are not called to testify to anything that took place between themselves and the deceased assignor. If it was, then no -party claiming title through or under a deceased grantor, however remote the conveyance, can be a witness where the land, or some estate in it, is the subject of the action. The proviso must have a reasonable interpretation, and it must not be so construed as to defeat the very purpose of the act. It was intended to exclude parties to the transaction from being witnesses in regard to it, where the opposite party is dead and his rights have become vested in others by his own act or*by operation of law. But it never could have been intended to exclude persons who were not parties to the transaction, and who are not called to testify anything respecting it. The plaintiff was, therefore, a competent witness; but were the facts proposed to be proved by him, material and relevant to the issue ? If there was a road through “the nine-acre lot,’’.and it was changed to its present location between that lot and “ the Bricker lot,” because the plaintiff would not accept the deed tendered by Hughes reserving the road, what bearing have these facts on the question whether there was a road through the lot conveyed to Bricker called the “ Old Shirey road,” and whether it is the road referred to and intended to be reserved in the deed of Hughes to Bricker ? Possibly the offer would have been admissible if it had been proposed to follow it with evidence showing that the road was changed to its present location before the execution and delivery of the deed to Bricker. But this was not a part of the offer, and as both deeds have the same date the presumption is that it was not the fact. If so, the offer was irrelevant, and the plaintiff has no right to complain of its rejection, though the reason assigned for it may have been erroneous. But there was error in rejecting the deposition of Josiah Bricker “so far as it relates to occurrences between Hughes and Bricker concerning the subject-matter in controversy in this suit.” If Hughes, the grantor of Bricker, was dead, the latter was not a party to the suit. It is true that the plaintiff claimed title under him, but he had released him from all liability on the covenants in his deed, and, therefore, Bricker had no interest in the event of the suit. It is clear that he would have been a competent- witness as the law stood prior to the passage of the act allowing parties to be witnesses, and it would be an utter perversion of its spirit and meaning to hold that he was disqualified by its provisions. It .is an enabling, and not a restraining statute; and the proviso was not intended to apply to a person competent as a witness before the passage of the act, and therefore not within its provisions.

Judgment reversed, and venire facias de novo awarded.