Dickson v. McGraw Bros.

Opinion by

Mb. Justice Stebrbtt,

In 1888, the leasehold in controversy, then owned by Mrs. Candis M. Dickson, wife of Henry Dickson, was levied and sold by the sheriff to John A. McGraw, who, in 1889, for the consideration of $ 1.00, sold and assigned the same to his mother by whom the defendants were put in possession. In 1890, the same leasehold was again sold by the sheriff on a judgment against Mrs. Candis M. Dickson and purchased by Mary E. Dickson, who with her husband afterwards brought this action of ejectment, alleging that the first sheriff’s sale was fraudulent and void as to the creditors of Mrs. Candis M. Dickson, as whose property it was levied and sold.

One of the questions, presented by the specifications of error, is the competency of Henry Dickson and said Candis M. Dickson his wife to testify to matters which the beneficial plaintiff proposed to prove by them respectively. The offers were objected to on the ground that the proposed testimony is immaterial and irrelevant aiid that the witnesses are incompetent to testify to matters occurring in the lifetime of John A. McGraw, who is dead. The objections were sustained and witnesses excluded. In this we think there was error.

“To exclude a witness,” said Mr. Justice Gibson, in Wolf v. Carothers, 3 S. & R. 240, “ it is necessary he should have a vested interest, not in the question, but in the event of the suit. It must be an interest that the judgment in the cause would operate upon ; for if by the event he would neither acquire or lose a right, nor incur a responsibility which the law recognizes, he is competent. Every other kind of interest goes to credibility. Here, if the jury had found in favor of the fairness of the transaction the witness would not by that have acquired a title to any part of the contents of the bond; for, though it might be fraudulent and void as against creditors, it would be good between the parties. Take it, then, that the whole was a mere device to cover the property of the witness from his creditors; still it rested with the generosity of his father whether he should, in case the fraud were successful, obtain any part of it. This, therefore, is an interest depending on honor, which goes to credibility, and not upon legal title, which goes to competency.” So it was said in Lauger v. Felton, 1 Rawle, 141: “ There is no estoppel between the parties to the deed. But, here the offer was to prove a fraud; and there is no principle clearer than that a party to a fraud is competent to prove it.” To the same effect are Babb v. Clemson, 12 S. & R. 328, and Sommer v. Sommer, 1 Watts, 303.

The act of May 23, 1887, P. L. 158, made no change in the law as then settled, but related solely to the competency of interested as distinguished from disinterested parties. It made interested parties, with the exceptions specified in section 5, competent witnesses. By exception (e), upon which the appellee seems to rely, the disqualification is made to depend not only on the fact of being a “ remaining party,” but having an “ adverse interest; ” and, even such parties may be made competent by disclaimer of title and by release or extinguishment of interest in the event of suit.

Henry Dickson and his wife Candis M. Dickson, the material witnesses by whom the plaintiff offered to prove the charge of fraud upon which her case depended, while they were said to have been remaining parties to the alleged fraud, not only had no “ adverse interest,” but had no interest whatever in the event of the suit; and were therefore competent witnesses.

The remaining specifications require no discussion.

Judgment reversed and a venire facias de novo awarded.