Wormley v. Hamburg

I. L. Merchant was introduced as a witness for the defendants, and, against the objections of plaintiff, was permitted to testify that he bought the land in second petition described at sheriff’s sale, and that before the expiration of the period of redemption Breese proposed to loan money to redeem, provided witness would execute to him a warranty deed. That he had not then received a sheriff’s deed, but that Hamburg and wife conveyed to him, and he conveyed to Breese, and Breese let Hamburg have between $1,480 and $1,490,- and was to execute a board for a deed to Hambui’g’s wife on condition that she or Hambm-g would -pay $2,000 in a year. E. Park was also introduced as a witness, who testified as follows: “ Hamburg was owing a judgment on the saw mill, and before the stay run out Breese proposed to loan him the money to pay it off; the amount due was $600. I was to give Breese a deed for the land as security, the same as I had, and Hamburg was to give his note for $1,000, payable in two years. Under this contract, I made the deed to Breese, and he paid off the judgment, and Hamburg gave his notes for $1,000. The deed I gave Breese I think is in the recorder’s office. At that time there was a written agreement as to what should be the effect of that deed.”

It is claimed that these witnesses were both incompetent to testify to these facts against the administrator of Breese, under section 3639, of the Code, on the ground of interest. The .position of appellant seems to be that these witnesses, because *25of their covenants of warranty, are interested, in the first place, to establish tbat these conveyances are really mortgages, and, in the second place, to diminish as much as possible the amount secured, in order to lessen their ultimate liability, if the title should prove defective.

The objection to these witnesses is not tenable. The interest which disqualifies a witness must be a present, certain, and 1 evidence-mMstratoiMs a party. vested interest, and not an interest uncertain, or contingent. The true test of the interest 0f a witness jSj that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him, in some other action. If the interest is of a doubtful nature, the objection goes to the credit of the witness, and not to his competency. For, being always presumed to be competent, the burden of proof is on the objecting party, to sustain his objection to the competency, and, if he faiR satisfactorily to establish it, the witness is to be sworn. 1 Greenleaf on Evidence, § 390. This suit did not involve the title to the lands described. Whether the title was defective, and if so, whether the warrantors would ever be called upon -to make it good, did not appear. The interest was at the most merely uncertain, remote and contingent. . It'was doubtful, and being doubtful, the disqualification does not satisfactorily appear.

II. The defendant, Henry Hamburg, was permitted, against plaintiff’s objections, to testify as to the facts respecting the claim made in the first petition, that only $600 was loaned, and a note was executed for $1,000; that Parker executed 2__ usury. a deed to Breese, and that the bond sought to pe foreclosed was executed in pursuance of the arrangement for a loan. The defendant, Malinda Hamburg, against the same objections, was also permitted to testify that she borrowed of .Breese between $1,400 and $1,500, for which she was to give $2,000 in payments within two years, and that the deed from Merchant and the bond to her were executed in pursuance of the arrangement. This testimony was incompetent. It is true section 1791, of the Revision, provides that “in all cases where the unlawful interest is not *26apparent on tbe contract or writing, tbe person contracting to pay tbe unlawful interest shall be a competent witness to prove that the contract is usurious.” But at the time this action was had section 2080, of the Code, was in force, which 3_ code. omits entirely this provision respecting evidence. And although this section was enacted after the commencement of the suit, yet being a provision affecting the remedy merely, and not impairing the obligation of the contract, it applies to and governs the production of testimony at the trial. Cooley on Constitutional Limitations, page 367, and cases cited. Section 3639 of the Code is general in its exclusion of a party or person interested in the result of a suit, as a witness in regard to any personal transaction between such' witness and a person at the time of testifying deceased, where the action is against the executor or administrator. The testimony above referred to falls within this inhibition, and was improperly admitted.

For the error in receiving the testimony of the ILamburgs, the judgment is

REVERSED.