Mr. Chief Justice ENGLISH
delivered the opinion of the Court.
This was an action of replevin, in the detinet, brought by Bu-fas E. Arnold, and wife Mildred M. and by Arnold, as guardian of Joel, Samuel, and Malcom McNeill Burke, minors, in the Dallas Circuit Court, against Hector McNeill, for the recovery of a girl slave named Louisa,. The writ was executed upon defendant, but returned not found as to the slave. The defendant pleaded non detinet, property in himself, and the statute of limitations, and issues were made up to the pleas. Afterwards, the death of Mrs. Arnold was suggested, the cause ordered to abate as to her, and to progress in the names of the other plaintiffs. The issues were submitted to the jury at the September term, 1855, and verdict and judgment for the defendant. The plaintiffs did not move for a new trial, but excepted to several decisions of the court made pending the trial, and set out the evidence in their bill of exceptions in order that the points reserved might be understood.
Louisa, was the daughter of Lizzy, and one of the same family of negroes in controversy in the case of McNeill vs. Arnold et al.
•. The evidence relied upon by the respective parties, to show title to the property, was substantially the same in the case now before us, as in the one already decided, and need not be stated again. The plaintiffs claimed under the deed of trust purporting to have been executed by Samuel Burke to Nathaniel Glover, conveying a separate property in the slaves, to the use of Lucy Ann Burke, the wife of Virgil J. Burke, for life, &c., remainder to her children, the plaintiffs (except Arnold) being her children. The defendant claimed the slave under a purchase from Virgil J. Burke, &c.
The court permitted the plaintiffs to read in evidence the deed of trust, with the certificates attached, upon parol proof of the registry acts of Mississippi. This was an error in their favor; and, of course, they do not complain of it here.
Glover testified, about the samn that he did in the other case, stating, in aádition, that be bad lost the letter written to him by Samuel Burke, making liim an agent to purchase the slave, &c.
The defendant offered to read in evidence the following deposition of Samuel Burke:
Interrogatory lsí. “ Are you acquainted with the parties to this suit ?
Answer. I am acquainted with Mr. Hector'McNeill, and have seen the children, except the youngest. I am not acquainted with Mr.' Arnold.
Interrogatory 2d. Examine the exhibit marked A, and state whether it is, or not a bill of sale executed by you to Hector Mc-Neill, of Dallas county, Arkansas ?
Answer. Exhibit marked A, is a quit claim bill of sale made by me to Hector McNeill.
Interrogatory 3d. Examine exhibit B, hereto annexed, purporting to be a copy oí a deed of trust executed by you to Nathaniel Glover as trustee for the use of Lucy Ann Burke and her children, purporting to bear date on the 15th day of March, 1841, and state whether or not you ever executed any deed of trust for any ne-groes to Nathaniel Glover for the use of Lucy Ann Burke, and if so, state when and where?
Answer. I have no recollection of making any7 deed of trust for negroes, or any other purpose, to Nathaniel Glover.
Interrogatory 4th. State whether or not you ever sent a $1000 to Nathaniel Glover in the State df Mississippi, and requested him by letter, or otherwise, to buy negroes with it, for you, about the year 1841, or any other timé?
Answer. I have no recollection of it.
Interrogatory 6th. State whether or not, you ever paid any amount of money for the girl Lizzy, referred to in exhibits A and B. If so, to whom, and what amount.
Ansicer. I never paid any7 to my reoollection.
Interrogatory 6th. State whether or not, you ever had the girl Lizzy, in your possession ? Or had any right to her ? Or ever knew you had a right, except from what Virgil J. Burke told yon?
Anewer. I never had any right to her, nor had her in my possession.
Interrogatory *Ith. State whether or not, you ever wrote Nathaniel G-lover a letter, requesting him to buy negroes for you ?
Interrogatory %th. State whether or not, you were in Noxube county, Mississippi, in March, 1841 ?
Answer, I have been in Noxube county; but don’t recollect the date.
Interrogatory 9th. Are you or not, satisfied in your recollection as to whether you executed a deed of trust, or any other writing to Nathaniel Glover, while in Noxube county, or did-you see him while there ?
Answer. I have no recollection of seeing him while there, nor of executing any,writing to Nathaiiiel Glover while there, or any other time.”
Exhibit Á, referred to in the deposition, is as follows:
“ Ivnow all men by these presents, that I, Samuel Burke, of the county of Christian, and State of Kentucky, for, and in consideration of the sum of five dollars to him in hand paid, the receipt of which is hereby acknowledged, does this day bargain, sell and convey unto Hector McNeill, of the county of Dallas, and State of Arkansas, all the right, title and interest he has, or may have, to the following described negroes: i. e., woman Lizzy, about thirty three years of age; with her daughters, say 'Louisa, about eleven or twelve years old; Aga, about eight years old ; Eliza, about six years old; Phoebe, about four years old; and Ann, about two years old ; the said negroes, the said Hector McNeill purchased of Virgil L Burke, of Arkansas, who purchased the mother of said family (Lizzy) of one P. Allen, of Monroe county, Mississippi; bill of sale given to me, Samuel Burke, dated 16th October, 1840, and sold of late by Yirgil J. Burke (who had the equitable title of said negroes) to Hector McNeill, as before named: this, then, is to convey all the right and title that I have to said negroes, with all their increase, &c., from me, my heirs, &c., unto him, said Hector McNeill, his heirs, assigns, &c. Warranting and defending against all claims against said ne-groes, in, through or by me in the nature of a quit claim. This 21st day of July, 1851.
his
SAMUEL BUBKE, [seal.]
mark.
The plaintiffs objected to the reading of this deposition, on the grounds that Samuel Burke was an incompetent witness, but the court permitted it to be read in evidence, and plaintiffs excepted.
The first ground of objection to the competency of the witness, is, that he was interested in the result of the suit, by reason of the clause of warranty contained in the above bill of sale from him to McNeill. That he warranted the title to the slaves, against all claims in, through or by him; and that the deed of trust under which the plaintiffs claimed title, and the execution of which the deposition of the witness conduced to disprove, was embraced by the warranty, being a claim under him; and if the plaintiffs recovered in the action, the witness would be liable over to Mc-Neill upon the warranty.
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Mr. Chief Justice ENGLISH
delivered the opinion of the Court.
This was an action of replevin, in the detinet, brought by Bu-fas E. Arnold, and wife Mildred M. and by Arnold, as guardian of Joel, Samuel, and Malcom McNeill Burke, minors, in the Dallas Circuit Court, against Hector McNeill, for the recovery of a girl slave named Louisa,. The writ was executed upon defendant, but returned not found as to the slave. The defendant pleaded non detinet, property in himself, and the statute of limitations, and issues were made up to the pleas. Afterwards, the death of Mrs. Arnold was suggested, the cause ordered to abate as to her, and to progress in the names of the other plaintiffs. The issues were submitted to the jury at the September term, 1855, and verdict and judgment for the defendant. The plaintiffs did not move for a new trial, but excepted to several decisions of the court made pending the trial, and set out the evidence in their bill of exceptions in order that the points reserved might be understood.
Louisa, was the daughter of Lizzy, and one of the same family of negroes in controversy in the case of McNeill vs. Arnold et al.
•. The evidence relied upon by the respective parties, to show title to the property, was substantially the same in the case now before us, as in the one already decided, and need not be stated again. The plaintiffs claimed under the deed of trust purporting to have been executed by Samuel Burke to Nathaniel Glover, conveying a separate property in the slaves, to the use of Lucy Ann Burke, the wife of Virgil J. Burke, for life, &c., remainder to her children, the plaintiffs (except Arnold) being her children. The defendant claimed the slave under a purchase from Virgil J. Burke, &c.
The court permitted the plaintiffs to read in evidence the deed of trust, with the certificates attached, upon parol proof of the registry acts of Mississippi. This was an error in their favor; and, of course, they do not complain of it here.
Glover testified, about the samn that he did in the other case, stating, in aádition, that be bad lost the letter written to him by Samuel Burke, making liim an agent to purchase the slave, &c.
The defendant offered to read in evidence the following deposition of Samuel Burke:
Interrogatory lsí. “ Are you acquainted with the parties to this suit ?
Answer. I am acquainted with Mr. Hector'McNeill, and have seen the children, except the youngest. I am not acquainted with Mr.' Arnold.
Interrogatory 2d. Examine the exhibit marked A, and state whether it is, or not a bill of sale executed by you to Hector Mc-Neill, of Dallas county, Arkansas ?
Answer. Exhibit marked A, is a quit claim bill of sale made by me to Hector McNeill.
Interrogatory 3d. Examine exhibit B, hereto annexed, purporting to be a copy oí a deed of trust executed by you to Nathaniel Glover as trustee for the use of Lucy Ann Burke and her children, purporting to bear date on the 15th day of March, 1841, and state whether or not you ever executed any deed of trust for any ne-groes to Nathaniel Glover for the use of Lucy Ann Burke, and if so, state when and where?
Answer. I have no recollection of making any7 deed of trust for negroes, or any other purpose, to Nathaniel Glover.
Interrogatory 4th. State whether or not you ever sent a $1000 to Nathaniel Glover in the State df Mississippi, and requested him by letter, or otherwise, to buy negroes with it, for you, about the year 1841, or any other timé?
Answer. I have no recollection of it.
Interrogatory 6th. State whether or not, you ever paid any amount of money for the girl Lizzy, referred to in exhibits A and B. If so, to whom, and what amount.
Ansicer. I never paid any7 to my reoollection.
Interrogatory 6th. State whether or not, you ever had the girl Lizzy, in your possession ? Or had any right to her ? Or ever knew you had a right, except from what Virgil J. Burke told yon?
Anewer. I never had any right to her, nor had her in my possession.
Interrogatory *Ith. State whether or not, you ever wrote Nathaniel G-lover a letter, requesting him to buy negroes for you ?
Interrogatory %th. State whether or not, you were in Noxube county, Mississippi, in March, 1841 ?
Answer, I have been in Noxube county; but don’t recollect the date.
Interrogatory 9th. Are you or not, satisfied in your recollection as to whether you executed a deed of trust, or any other writing to Nathaniel Glover, while in Noxube county, or did-you see him while there ?
Answer. I have no recollection of seeing him while there, nor of executing any,writing to Nathaiiiel Glover while there, or any other time.”
Exhibit Á, referred to in the deposition, is as follows:
“ Ivnow all men by these presents, that I, Samuel Burke, of the county of Christian, and State of Kentucky, for, and in consideration of the sum of five dollars to him in hand paid, the receipt of which is hereby acknowledged, does this day bargain, sell and convey unto Hector McNeill, of the county of Dallas, and State of Arkansas, all the right, title and interest he has, or may have, to the following described negroes: i. e., woman Lizzy, about thirty three years of age; with her daughters, say 'Louisa, about eleven or twelve years old; Aga, about eight years old ; Eliza, about six years old; Phoebe, about four years old; and Ann, about two years old ; the said negroes, the said Hector McNeill purchased of Virgil L Burke, of Arkansas, who purchased the mother of said family (Lizzy) of one P. Allen, of Monroe county, Mississippi; bill of sale given to me, Samuel Burke, dated 16th October, 1840, and sold of late by Yirgil J. Burke (who had the equitable title of said negroes) to Hector McNeill, as before named: this, then, is to convey all the right and title that I have to said negroes, with all their increase, &c., from me, my heirs, &c., unto him, said Hector McNeill, his heirs, assigns, &c. Warranting and defending against all claims against said ne-groes, in, through or by me in the nature of a quit claim. This 21st day of July, 1851.
his
SAMUEL BUBKE, [seal.]
mark.
The plaintiffs objected to the reading of this deposition, on the grounds that Samuel Burke was an incompetent witness, but the court permitted it to be read in evidence, and plaintiffs excepted.
The first ground of objection to the competency of the witness, is, that he was interested in the result of the suit, by reason of the clause of warranty contained in the above bill of sale from him to McNeill. That he warranted the title to the slaves, against all claims in, through or by him; and that the deed of trust under which the plaintiffs claimed title, and the execution of which the deposition of the witness conduced to disprove, was embraced by the warranty, being a claim under him; and if the plaintiffs recovered in the action, the witness would be liable over to Mc-Neill upon the warranty.
The purport of the bill of sale, is, that the grantor had the naked, legal title, which, for the consideration of five dollars, he conveyed to McNeill, with warranty against all claims under the grantor. There is no proof that the $5.00 was not really paid, but was nominal, and inserted as matter of form, nor is there any showing that McNeill had released the witness from liability upon the warranty.
The warrantor of title to the property which is in controversy, is generally incompetent as a witness for his vendee, in an action concerning the title. And it makes no difference in what manner the liability arises, nor whether the property is real, or personal estate. If the title is in controversy, the person who is bound to make it good to one of the litigating parties, against the claim of the other, is identified in interest with that party; and, therefore, cannot testify in his favor. 1 Greenl. Ev., sec. 397; 1 Phil. Ev. 108; Cowen & Hill's notes, part 1, note 96.
The magnitude or degree of the interest is not regarded in estimating its effect on the mind of the witness, for it is impossible to measure the influence which any given interest may exert. It is enough that the interest which he lias in the subject, is direct, certain, and vested, however small may be its amount; for interest being admitted as a disqualifying circumstance in an]*- case, it must, of necessity, be so in every case, whatever be the character, rank-or fortune of the party interested. 1 Greenl. Ev., sec. 391.
Where the vendor sells without warranty, express or implied, he is competent; or where his covenant of warranty is restricted to claims set up under himself alone, he is a competent witness for his vendee, in a contest between his vendee, and one not claiming under the vendor. Twambly vs. Henley, 4 Mass. 441; Bendelman vs. Foulk, 5 Watts 308; Adams vs. Cuddy, 13 Pick. 460; Bridge vs. Eggleston, 14 Mass. 245; Davis vs. Spooner, 3 Pick. 284; Lathrop vs. Muzzy, 5 Greenl. 450.
But, in the case before us, both parties claim under the witness.
Mr. GbeeNleaf further remarks, in see. 397, from which we have quoted, above, that: Ci If the effect of the judgment is certainly to render him liable, though it be only for costs, he is incompetent ; but, if it is only to render it more or less probable that he will leprosecuted, the objection goes only to his credibility,” (&e. '
The counsel of McNeill, availing themselves of this latter remark of Mr. Gbeicnleaf, say : “ That it would be a most improbable and preposterous idea to suppose that defendant would ever attempt, upon the plaintiff’s recovery, to go from Arkansas to Kentucky, to recover the consideration mentioned in the bill of sale, to wit: the sum offive dolla/rsf from the witness,
Mr. Gekknleaf cites no authorities in support of the above remark, which we have copied in italics, nor do we understand to what character of cases, he intended it to apply; but it has been held in adjudicated cases entitled to respect, that, “ tbe uncertainty whether the judgment will be used against the witness, will not make him competent. His competency does not depend on the certainty of using the evidence against him hereafter, but on the certainty that it may be used if wanting.” Lampton vs. Lampton's Exrs., 6 Mon. 619; Wallace’s Exrs. vs. Twyman, 3 J. J. Marsh. 461; Collett vs. Wiley's heirs, 2 Bibb 467. For, remarked the court, in the case last cited, as it is not in the power of the court to estimate the degree of interest a witness is capable of resisting, the law wisely rejects every one, whose right may be immediately affected by the determination.
"We have no means of determining what consequence McNeill may attach to the warranty, nor to what extent the liability of the witness thereon may have biased his testimony. The law, which does not regard the magnitude of the interest, has fixed a standard which we can follow, but if we depart from this, we are upon an open sea, without any certain guide.
It is moreover insisted by the counsel of McNeill, that the interest of the witness was balanced. They say: “ It appears from the deed of trust that the witness received ten dollars, as one of the considerations for executing the deed. There is no covenant of warranty, it is true, in the deed, but on the sale of personal property, the law raises an implied warranty, that the vendor had the right to sell the property mentioned in the deed; and, therefore, in this case, the beneficiaries in the deed would have the right to recover back from the witness, the §10 acknowledged to have been paid in the deed.”
It may be remarked in reference to this argument, that it is based upon the assumption that the witness did really execute the deed of trust, which is the very matter the defendant is seeking to disprove by the deposition of the witness. But aside from this, though it may be true, that a vendor of goods having possession, and selling them as his own, is held bound in law, to warrant the title to the vendee; (1 Greenl. Ev., sec. 398,) yet, there is no pretence that the witness sold the slaves to the beneficiaries in tlie deed ; on tlie contrary, it is manifest from the face of the deed, and the testimony of Glover, (if he is to be believed) that the witness made a gift of the slaves to bis son’s wife and her children. The $10 purports, on the face of the deed, to have been paid by Glover, the trustee, and not by Mrs. Burke, and ivas, perhaps, inserted as matter of form.
It is moreover insisted by the counsel of McNeill, that the plaintiffs being the grand-children of the witness, his prejudice iu tlieir favor, by reason of natural affection, would more than counterbalance any bias upon his mind in favor of the defendant because of the warrauty. ..
But it seems, also, from the testimony, that the defendant was related to the witness, likewise, perhaps a nephew, and we have no mode of determining with any certainty, which he had the stronger affection for, the plaintiffs or the defendant. We might conjecture that his attachment was stronger for those most nearly related to him, but this would not do to roly on as a rule, for it is not always true. The only safe rule, as above remarked, is to exclude the witness where he is interested in the result- of the suit, without regard to tlie magnitude of the interest.
The second objection taken by tlie plaintiffs to tbe deposition of Samuel Burke, is, that be was an incompetent witness to disprove tlie execution of a deed (the deed of trust) purporting to have been executed by him. There is nothing in this objection. It has been held, at one time, iu England, that no party who has signed a deed shall ever be permitted to give testimony to invalidate the instrument which lie has so signed. But this doctrine was overturned there, and our decisions favor tbe competency of the witness. See Tucker vs. Wilamowicz, 3 Eng. Rep. 157, and cases cited. Caldwell Exr. vs. McVicar, 7 Eng. R. 750. See, also, Knight vs. Packard, 3 McCord R. 71; 1 Serg. & R. 102; 2 Binn. 168, on the same subject.
On tlie grounds of interest, however, as we have above seen, tlie deposition of Samuel Burke should liave been excluded.
It may be well enough to remark tbat the case of McNeill vs. Arnold was reversed mainly upon tlie ground that such portions of Samuel Burke’s deposition, taken in that case, as were responsive to interrogatories which were not leading, were erroneously suppressed and excluded from the jury by the court. In that case, the competency of Burke was not questioned in the court below, nor in the argument here. His deposition was objected to, and suppressed on the ground that the interrogatories were leading. We could not consider .the question of incompetency here, because it was not made in the court below. Scott vs. Jester, 13 Ark. Rep. p. 442, and cases there cited. Gunter vs. Ashley, 15 Ark. 415; 1 Greenl. Ev., sec. 421. Had the objection, that the witness was incompetent on account of interest, been raised when the motion to suppress was made, McNeill would have had it in his power, if he had thought proper, to release the witness from liability upon the warranty, and retake his deposition. But had we affirmed the judgment upon the ground that the witness was incompetent; and, therefore, the deposition properly suppressed, though not for that reason, he would have been cut off from the privilege of executing a release, and retaking the deposition.
But, in the case now before, us, the motion to exclude was expressly made upon the grounds of incompetencv and in proper time.
The court below gave all the instructions asked by the plaintiffs, and refused to give those moved by the defendant, except the 3d, 5th, 8th and 9th.
The instructions given at the instance of the defendant, against the objection of the plaintiffs, so far as they differ from those given on the motion of the plaintiffs, were perhaps, based upon the testimony of Burke. As we have held that his testimony should have been excluded, it is unnecessary to consider the instructions based upon it.
The judgment is reversed, and the cause remanded, with instructions to grant the plaintiffs a new trial.