Griggs v. Vermilya

Opinion by

Mb. Justice McCollum,

• The sole question in this case is whether the appellant is a competent witness to testify to matters pertinent to the issue and occurring in the lifetime of her son Mark E. Vermilya, the mortgagor. In considering it regard must be had to her position as a claimant of the land included in the mortgage. This land was conveyed by the appellant and her husband to their son Mark on the 21st day of February, 1873, and the deed therefor was duly recorded two days thereafter. On the 12th of May, 1882, Mark mortgaged it to Griggs, the appellee, for $2,200 and the mortgage was recorded the same da}r. Mark E. Vermilya died on the 3d day of July, 1887, and Wm. L. Cable was appointed his administrator, against whom a writ of scire facias on said mortgage was issued April 28, 1888. The writ was duly served on him and on George W. Vermilya and Lovina Vermilya, terre tenants. The due execution of the mortgage and the validity of the debt secured by it were not denied but the terre tenants were allowed to defend on their allegation that when the mortgage was made Mark E. Vermilya had no interest in the land and that the title to the same then was and now is in the appellant. In support of their claim they gave in evidence a deed of the land from Mark E. Vermilya to Lovina Vermilya acknowledged Jan. 4,1882, and recorded Nov. 23, 1887. They then offered to show by the appellant a parol sale in 1874, in pursuance and consummation of which this deed was executed and delivered, and also that she took and maintained possession of the land under such sale. The offer was objected to and rejected on the ground that the matter contained in it occurred in the lifetime of Mark E. Yermilya and related to an alleged transaction with him on which she relies to defeat his conditional grant to the appellee.

Is she a competent witness for the purpose stated ? The mortgage9of this land by Mark E. Yermilya was the exercise of an act of ownership and it involved an assertion by him that he had an estate in it. This claim was supported by the record of the deed to him from the appellant and her husband. If after the execution and delivery of this deed they had obtained possession of the land and he had brought ejectment against them to recover it, and died pending the action, they could not allege and support by their own testimony a transaction with him by which he returned the title to them, nor would their possession of an alleged deed from him qualify them to testify to such matters. The subject-matter of the contest and their rights and disabilities are the same in an action by his mortgagee as in an ejectment by him, tried after his death and the substitution of his heirs as plaintiffs therein. Their competency as witnesses is not affected by the form of the action or by the fact that it was instituted by his mortgagee.

In this case Mark E. Yermilya, claiming to be the owner of the land in dispute, conveyed, by the mortgage sued upon, his rights therein to the appellee. The defence of the appellant is a denial of the claim of the mortgagor, and her interest being adverse to the rights so conveyed she is not a competent witness to matters occurring in his lifetime.

The specification of error is overruled.

Judgment affirmed.