Mr. Justice Sterrett
delivered the opinion of the court, January 3d 1881.
The contention involved in several of the specifications of error is, that the defendant was an incompetent witness to prove anything that occurred in the lifetime of his father, respecting the possession or ownership of the lot in controversy. It is claimed that, in the statutory sense of the term, his father, under whose will the plaintiff claims title, was her assignor, and therefore defendant was incompetent.
The Act of April 15th 1869 declares, in general terms, that “no [385]*385interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding.” The rule thus established, as a substitute for that of the common law, is undoubtedly broad enough to embrace the defendant; but the act, restrained as it is by the terms of the proviso, does not apply to certain persons and actions therein particularly designated, and hence the common-law rules of evidence are still in force as to the persons and actions thus excluded from the operation of the act. It is provided that the act shall not alter the then existing law so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communications of his .client, and that it “shall not apply to actions by 'or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead, excepting in issues and inquiries deviscwit vel non, and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” Some of these provisions have been somewhat modified by subsequent legislation. The Act of March 4th 1870 authorizes either husband or wife to testify “ in his or her own behalf in any proceeding for a divorce, in every case where personal service of the subpoena is made on the opposite party or said party appears and defends.” By the Act of April 9th 1870, it is provided that “ in all actions and civil proceedings * * * by or against executors, administrators or guardians, or in actions where the assignor of the thing or contract in action may be dead, no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” The supplement of June 8th 1874, enlarges the scope of the proviso by declaring that the act “shall not apply-to actions by or against committees of lunatics, except as to matters occurring.after the appointment of said committee;” and the Act of May 25th 1878 provides, “ That in all civil proceedings in law or equity, * * * by or against surviving partners, no interest or policy of law shall exclude any party to the record from testifying' to matters having occurred between the surviving partners and the adverse party on the record.”
Several of these provisions have no direct bearing on the precise question under consideration, but they are here noticed for the purpose of better bringing into view the general scope and spirit of the act. While the legislative purpose to establish a new rule of evidence is clearly expressed, the intention to exclude from its operation certain persons disqualified on grounds of public policy, and cases in which inequality and consequent undue advantage would otherwise result, is equally manifest. One of the evident purposes of the proviso was to exclude certain cases in which it was impossible for the opposing parties to be placed on a footing [386]*386of substantial equality in regard to testifying. In general, where parties have dealt together or have sustained relations to each other out of which rights and obligations have sprung, each may be supposed to have an equal knowledge of the transactions or of the relations existing between them, and both, if living and of sound mind, are permitted to testify ; but if death or insanity has precluded one of them from testifying, the other is not entitled to the undue advantage of being a witness in his own case. The spirit of equality which pervades the act, forbids the application of the new rule in actions where the rights of a deceased person or a lunatic are represented by one of the parties, except as to matters occurring since the death of such person or the appointment of the committee of such lunatic, and matters between surviving partners and the adverse party on the record: Hess v. Gourley, 8 Norris 195. In that case it is said: “ In determining the competency of a witness to prove a matter which occurred during the life of a decedent, the inquiry is whether the action is within the statute. This is not difficult when the suit is by or against an executor, administrator or guardian in his representative capacity. Nor is it in other cases, if the spirit of the statute be kept in view, and the persons intended by the word assignor be learned from the context rather than its technical definition.”
The defendant was undoubtedly competent to prove anything that occurred after the decease of his father the plaintiff’s testator; but was he competent to prove what occurred before? He undoubtedly was unless the action was one of those to which the proviso declares the act shall not apply, for example, “ where the assignor of the thing or contract-may be dead.” If, in the statutory sense, the plaintiff’s devisor wuis her assignor of the lot in controversy, then, by the very terms of the proviso, the act did not apply, and the defendant W'as therefore incompetent to prove any fact or circumstance that occurred in the lifetime of his father, tending to show that he acquired and held possession of the lot, either adversely to him or as his donee. This must be determined by the nature and character of the claim and defence, as disclosed by the testimony. The plaintiff, claiming as devisee under the will of her husband, proved that he acquired the title by deed of conveyance from Benjamin Hayden, in August 1847, and in connection therewith, gave in evidence the will, duly probated in February 1874, by which the property was devised to her in fee. The claim of title thus exhibited gave her a clear prima facie right of possession. On the other hand, the defendant, not questioning the goodness of the title acquired by his father in 1847, claimed under the Statute of Limitations, alleging “ that he went into possession of the lot-in dispute in the spring of 1848, claiming it as his own; that he occupied and held it as such from that time until the bringing of this action in 1879; that from time to time he made valu[387]*387able improvements, and in the meantime his ownership had never been disputed by any one.” He was called as a witness in his own behalf, and under a general objection-and exception to his competency on' the ground that the plaintiff’s devisor was dead, he was permitted to testify substantially as above stated. In doing so he refrained from testifying in chief to any understanding or transaction between himself and his father in relation to the property; but, on cross-examination, the fact was elicited that he went into possession in 1848, in pursuance of a parol gift from his father, and ever since held and claimed the property as his own. His testimony as to the inception of his claim and the character of his possession for a period of nearly thirty years was clear and positive; and under the charge of the learned judge, must have satisfied the jury that his title, under the statute, by adverse possession was complete.
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Mr. Justice Sterrett
delivered the opinion of the court, January 3d 1881.
The contention involved in several of the specifications of error is, that the defendant was an incompetent witness to prove anything that occurred in the lifetime of his father, respecting the possession or ownership of the lot in controversy. It is claimed that, in the statutory sense of the term, his father, under whose will the plaintiff claims title, was her assignor, and therefore defendant was incompetent.
The Act of April 15th 1869 declares, in general terms, that “no [385]*385interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding.” The rule thus established, as a substitute for that of the common law, is undoubtedly broad enough to embrace the defendant; but the act, restrained as it is by the terms of the proviso, does not apply to certain persons and actions therein particularly designated, and hence the common-law rules of evidence are still in force as to the persons and actions thus excluded from the operation of the act. It is provided that the act shall not alter the then existing law so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communications of his .client, and that it “shall not apply to actions by 'or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead, excepting in issues and inquiries deviscwit vel non, and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” Some of these provisions have been somewhat modified by subsequent legislation. The Act of March 4th 1870 authorizes either husband or wife to testify “ in his or her own behalf in any proceeding for a divorce, in every case where personal service of the subpoena is made on the opposite party or said party appears and defends.” By the Act of April 9th 1870, it is provided that “ in all actions and civil proceedings * * * by or against executors, administrators or guardians, or in actions where the assignor of the thing or contract in action may be dead, no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” The supplement of June 8th 1874, enlarges the scope of the proviso by declaring that the act “shall not apply-to actions by or against committees of lunatics, except as to matters occurring.after the appointment of said committee;” and the Act of May 25th 1878 provides, “ That in all civil proceedings in law or equity, * * * by or against surviving partners, no interest or policy of law shall exclude any party to the record from testifying' to matters having occurred between the surviving partners and the adverse party on the record.”
Several of these provisions have no direct bearing on the precise question under consideration, but they are here noticed for the purpose of better bringing into view the general scope and spirit of the act. While the legislative purpose to establish a new rule of evidence is clearly expressed, the intention to exclude from its operation certain persons disqualified on grounds of public policy, and cases in which inequality and consequent undue advantage would otherwise result, is equally manifest. One of the evident purposes of the proviso was to exclude certain cases in which it was impossible for the opposing parties to be placed on a footing [386]*386of substantial equality in regard to testifying. In general, where parties have dealt together or have sustained relations to each other out of which rights and obligations have sprung, each may be supposed to have an equal knowledge of the transactions or of the relations existing between them, and both, if living and of sound mind, are permitted to testify ; but if death or insanity has precluded one of them from testifying, the other is not entitled to the undue advantage of being a witness in his own case. The spirit of equality which pervades the act, forbids the application of the new rule in actions where the rights of a deceased person or a lunatic are represented by one of the parties, except as to matters occurring since the death of such person or the appointment of the committee of such lunatic, and matters between surviving partners and the adverse party on the record: Hess v. Gourley, 8 Norris 195. In that case it is said: “ In determining the competency of a witness to prove a matter which occurred during the life of a decedent, the inquiry is whether the action is within the statute. This is not difficult when the suit is by or against an executor, administrator or guardian in his representative capacity. Nor is it in other cases, if the spirit of the statute be kept in view, and the persons intended by the word assignor be learned from the context rather than its technical definition.”
The defendant was undoubtedly competent to prove anything that occurred after the decease of his father the plaintiff’s testator; but was he competent to prove what occurred before? He undoubtedly was unless the action was one of those to which the proviso declares the act shall not apply, for example, “ where the assignor of the thing or contract-may be dead.” If, in the statutory sense, the plaintiff’s devisor wuis her assignor of the lot in controversy, then, by the very terms of the proviso, the act did not apply, and the defendant W'as therefore incompetent to prove any fact or circumstance that occurred in the lifetime of his father, tending to show that he acquired and held possession of the lot, either adversely to him or as his donee. This must be determined by the nature and character of the claim and defence, as disclosed by the testimony. The plaintiff, claiming as devisee under the will of her husband, proved that he acquired the title by deed of conveyance from Benjamin Hayden, in August 1847, and in connection therewith, gave in evidence the will, duly probated in February 1874, by which the property was devised to her in fee. The claim of title thus exhibited gave her a clear prima facie right of possession. On the other hand, the defendant, not questioning the goodness of the title acquired by his father in 1847, claimed under the Statute of Limitations, alleging “ that he went into possession of the lot-in dispute in the spring of 1848, claiming it as his own; that he occupied and held it as such from that time until the bringing of this action in 1879; that from time to time he made valu[387]*387able improvements, and in the meantime his ownership had never been disputed by any one.” He was called as a witness in his own behalf, and under a general objection-and exception to his competency on' the ground that the plaintiff’s devisor was dead, he was permitted to testify substantially as above stated. In doing so he refrained from testifying in chief to any understanding or transaction between himself and his father in relation to the property; but, on cross-examination, the fact was elicited that he went into possession in 1848, in pursuance of a parol gift from his father, and ever since held and claimed the property as his own. His testimony as to the inception of his claim and the character of his possession for a period of nearly thirty years was clear and positive; and under the charge of the learned judge, must have satisfied the jury that his title, under the statute, by adverse possession was complete. If, under a proper construction of the act, he was incompetent to prove what occurred in the lifetime of his father, it may be his misfortune; but the real or supposed hardship of any particular case cannot be considered in construing the statute.
In view of the evidence, showing distinctly the position in which the parties stood with reference to the title, the language of the proviso, as well as the spirit of the act, and the construction it has heretofore received, we are clearly of opinion that the testator must be regarded as the assignor of the plaintiff within the fair intendment and meaning of the act. As is said in Hess v. Grourley, supra: “ In the statutory sense, .the assignor of the thing or contract is he whose rights therein or thereunder, at or before the time of his decease, passed by his own act, or by law, to a party in the action.” The title which the testator had to the lot in controversy, at the time of his decease, passed then by his will to the plaintiff, by whom the same title is now represented in this action. He was, therefore, in the proper sense of the term, the .assignor of the thing in action. The case was one of the class which is excepted from the operation of the general rule of evidence prescribed' by the Act of 1869, and the defendant was, therefore, clearly incompetent to prove the facts and circumstances to which he testified, as having occurred in the lifetime of his father in relation to the ownership and possession of the lot. He was adversary to the deceased assignor whose title, represented by the plaintiff in the action, his testimony tended strongly to defeat. The first six specifications of error are sustained.
In view of the nature of the defence that was interposed, we cannot say there was error in refusing to charge as complained of in the remaining assignments. The defendant did not rely on the alleged parol gift, except for the purpose of establishing the adverse character of his possession. His defence was that he went into possession in 1848, claiming the property in his own right and not in subordination to his father’s title, and continued to so hold it [388]*388until his title under the Statute of Limitations was complete. Any fact or circumstance tending to show that defendant’s possession was adverse was proper for the consideration of the jury. As was said in Campbell v. Braden, post, reported below, “ The real question in such case is not so much what was intended by the donors, as what the donee’s understanding was, what he claimed, what he did. Did he consider the gift absolute, and did he, under that idea, hold adversely to his father.” This was substantially the question that was submitted to the jury, under the defendant’s testimony and other evidence in the case. The learned judge instructed them that if the evidence as to the nature and character of the possession claimed by the defendant, was so clear and satisfactory as to convince them of its truth, their verdict should be in favor of the defendant. The error, as we have seen, was in permitting defendant to testify to what occurred during his father’s lifetime, and in submitting this testimony to the jury. If he had been a competent witness, generally, there would have been no error of which the plaintiff would have had just reason to complain.
Judgment reversed, and a venire facias de novo awarded.