Gilkey v. Peeler , 22 Tex. 663 ( 1859 )

Wheeler, Ch. J.

The errors relied on, which require notice, relate to the ruling of the court upon the admissibility of evidence, and the refusal of instructions asked by the plaintiff.

The witnesses, Pleasant and G-. B. Harris, were sons-in-law of the defendant. Then.’ wives would be entitled to a distributive share of the estate of the defendant’s intestate, in whose right she claimed the property in question. It is a general rule of evidence, that if the effect of a witness’s testimony will be to create or increase a fund in which he may be entitled to participate, he is incompetent. It is not necessary that the interest of the witness in the fund should appear to be necessarily and inevitably affected. If such may be the result, he cannot be allowed to testify. (Cowen and Hill’s Notes, Part 1, note 84, p. 93; Johnson v. Alexander, 14 Tex. Rep. 382.) It is clear, therefore, that the wives of the witnesses would have been incompetent, from interest, to testify on behalf of the defendant. And the rule is, that where the husband or wife has an interest directly involved in the suit, and is therefore incompetent to testify, the other is also incompetent. The husband cannot be a witness for or against his wife, in a question touching her separate estate. (1 Greenl. Ev. § 341.) It is clear, therefore, that the witnesses were incompetent to testify on behalf of the defendant, and that there was error in admitting their testimony.

This might suffice for the present disposition of the case; but as it must be remanded, it is material to observe, for the direction of the parties upon another trial, that there was error, also, in the exclusion of the deposition of the witness, Elizabeth Gilkey. She was the sister of the defendant, and her co-heir to the property of the plaintiff’s intestate. Her interest was adverse to the right set up by the defendant in this suit, and must have been known to the defendant. Yet the latter proceeded to take her testimony by dejDOsition, and only declined to use it, and objected to the use of it by the plaintiff, when it was found to be adverse to her. It is well settled, that if a party is aware that a witness is interested, he will not be permitted to examine the witness, and afterwards to object to his competency, if he should dislike his testimony. The rule is the same in equity and at law, and is applied equally to testimony given in a deposition in writing, and to an oral examination in court. (1 Greenl. Ev. § 421; Cowen and Hill’s Notes to Phil. Ev. n. 113 to p. 154; Johnson v. Alexander, 14 Tex. Rep. 382.)

We think, also, that the instructions asked by the plaintiff might properly have been given. They certainly were correct in point of law, and were not inapplicable to the evidence. Whether the slave in controversy was the property of Rebecca Gilkey at the time of her death, and whether the defendant's intestate took and held possession of the slave, in his own right, or in the right of his wife, as heir of Rebecca, were questions to be decided by the jury. If the right was in the wife, the present defendant, as heir, and the possession was taken and held in her right, it would be deemed primá facie the possession of her co-heirs, and to be held by her in trust for them; and to rebut this presumption, and enable the defendant to claim the benefit of the statute of limitations in favor of the possession of„ her intestate, it must appear that he took and held possession under a claim of exclusive right. His possession must have been openly adverse to the hens; and mere acts of ownership, in such a case, are not sufficient to establish such adverse possession. (Alexander v. Kennedy, 19 Tex. Rep. 488.) Instructions to this effect may have been refused, on the ground that they were not called for by the evidence, because it tended to prove that the possession was taken by the defendant’s intestate in his own right. But though the weight of evidence may have supported this opinion, it was not so conclusively proved, it is conceived, that the court would feel warranted in withdrawing the consideration of the question from the jury; and if a question for their decision, it was the right of the parties to have them informed upon the law, as applicable to either conclusion of fact they might think proper to adopt.

The judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.