Love v. Stone

56 Miss. 449

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The motion to suppress the deposition of Stone, because he testified to support his own claim against the estate of Wooten, a deceased person, was properly overruled. Although Stone testified to dealings between himself and Wooten, he did not testify to support any claim or right of himself against the estate of such deceased person, nor was he a party to litigation with that estate. It is true that Wooten’s administrator is a co-defendant with Stone in the bill exhibited against them, but there is no controversy between them, and no right of Wooten is involved in this suit, as between the complainants and Stone.

That Wooten’s estate may be affected prejudicially in consequence of the result of this suit in Stone’s favor, and a future action against Wooten’s estate, does not render Stone incompetent as a witness in the present suit. To exclude a party as a witness to prove his own claim or right, it must be against the estate of a deceased person in the suit in which he proposes to testify. The death of one of the parties to a transaction seals the lips of the survivor as a witness only when that survivor is offered as a witness to testify of such transaction in a suit in which the estate of the deceased person is involved. In a suit involving Wooten’s estate, to which Stone was a party, he ’ would be incompetent as a witness : but, as already stated, this suit does not embrace Wooten’s estate, and Stone was not incompetent on the ground on which the motion to suppress his deposition was made and decided in the court below.

It is urged here that Stone was incompetent as a witness because this suit is to establish the right of Asa Love, deceased, as against Stone, in favor of complainants, who are heirs of Love. We decline to entertain this objection, because the record shows that, in the Chancery Court, the only objection made to Stone’s deposition, or considered by the court, was his iucompetency as against Wooten’s estate.

The testimony of Stone destroys the equity of the bill, which rests upon the averment of the payment by Wooten, the surety on the bond of Stone, to Fort, commissioner, of the purchase-money of the land. Stone testified that he paid the money, and that Wooten did not.

The only other question is, whether Stone was estopped by his acts in reference to the land from asserting his legal title to it.

Applying the principles announced in the cases of Sulphine v. Dunbar and Staton v.Bryant, 55 Miss. 255 and 261, we answer this question in the negative.

Decree affirmed.