Love v. Stone

Mississippi Supreme Court January 15, 1879

Love v. Stone, 56 Miss. 449 (Miss. 1879)

Campbell

Opinion of the Court

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.

*454That 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.

Reference

Full Case Name: G. G. Love v. William E. Stone
Cited By: 16 cases
Status: Published
Syllabus: 1. Witness. When incompetent against estate of deceased person. Case in ¡judgment. S. was the owner of the legal title to a certain tract of land. The heirs of L. filed a bill in equity, setting up an equitable claim to the land. L. had bought it from W., who gave him a warranty deed therefor. W. being dead, his administrator was made a co-defendant with S. At the hearing, the deposition of S: was offered as evidence of transactions which occurred between him and W., tending to establish his right to the land against W. and his vendee, L. The complainants moved to suppress his deposition, on the ground that it was testimony against the estate of W., a deceased person. The motion was overruled. Held, that the motion was properly overruled. There being no controversy between S. and the estate of W., the fact that the estate may, as a result of this contest, be sued on the warranty in W.’s deed does not render S. incompetent as a witness in this suit. A party can only be excluded on such ground where he is a witness against the estate of a deceased person in the suit in which he proposes to testify. 2. Practice. Deposition. Objections, when to be made. Where a motion is made to suppress a deposition upon a certain stated ground, and that only is considered by the lower court, this court will not entertain any other objection first made here. 3. Estoppel. When arising from conduct. Case in judgment. In 1859, S. bought a half-section of land, and in the same year sold it, by parol, to W. Without paying for it, W. took possession. In 1863, W. sold one undivided half-interest in it to L., and in 1865, the other to Y. The land was then divided, L. getting one hundred acres, and Y. two hundred and twenty acres. L. erected valuable and costly improvements on his part, and S. made no objection, and gave no actual notice of his claim to the land. S. assisted W. in making the sale to Y.; and Y. gave a deed of trust on his part of the land to secure a debt to S., in which the other part was mentioned as belonging to L. Y.’s interest was sold under the deed of trust; S. became the purchaser, and the trustee executed to him a deed, in which the other part of the half-section was mentioned as belonging to L. In 1875, W. died, and soon thereafter L. died. From 1859 to 1876, W. and his vendees were in possession of the land, and paid the taxes on it. Within that time, S. never made any claim to the land, although he and W. and L. resided near together, and were related by marriage. The deed which S. got by his purchase in 1859 was delivered by him to the probate clerk, soon after its reception, to be recorded, but the clerk neglected to record it; and in 1875, after the death of W., S. discovered the neglect, and immediately had it recorded. Held, that S. was not estopped by his conduct from claiming against the heirs of L. the one hundred acres bought from W.