17 D.C. 574 (D.C.D.C. 1888), 25,228, Beale v. Brown

Docket Nº:At Law. 25,228.
Citation:17 D.C. 574
Opinion Judge:MR. JUSTICE MERRICK:
Party Name:GEORGE N. BEALE AND WIFE v. GEORGE W. BROWN ET AL.
Attorney:MR. HENRY WISE GARNETT, for plaintiff. MESSRS. W. D. DAVIDGE and EDWARDS & BARNARD, for defendants:
Case Date:November 05, 1888
Court:Supreme Court of District of Columbia
 
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Page 574

17 D.C. 574 (D.C.D.C. 1888)

GEORGE N. BEALE AND WIFE

v.

GEORGE W. BROWN ET AL.

At Law. No. 25,228.

Supreme Court, District of Columbia.

November 5, 1888

          1. The act of Congress prohibiting a husband and wife from testifying for or against each other has no application where the wife is the substantial and material party to the action, the husband being only joined as a formal party; in such a case the wife is competent to testify in her own behalf.

         2. Where in ejectment both plaintiff and defendant claim title from a common source the plaintiff is not required to trace his title from the State.

         3. The recitals of the bill in a suit in equity brought by the defendant and subsequently dismissed are sufficient prima facie evidence for the plaintiff in ejectment to repel the presumption of title in the State, when such recitals set out a common source of title between the plaintiff and defendant.

         4. The defendant may, however, rebut such evidence by showing affirmatively that the title still remains in the State.

         5. The provisions of the act of Congress of 1819 requiring an official report of the tax sale to be placed on record in the office of the Recorder of Deeds, must first be shown to have been complied with before a tax deed can be received in evidence in ejectment; affirming King vs. District of Columbia, Mac A. & Mackey, 36.

         MOTION for a new trial on exceptions taken in an action of ejectment.

         THE FACTS are sufficiently stated in the opinion.

         MR. HENRY WISE GARNETT, for plaintiff.

         MESSRS. W. D. DAVIDGE and EDWARDS & BARNARD, for defendants:

          1. Did the Court err in admitting the testimony of the plaintiff, Mrs. Beale?

         Under a statute similar to the one in force in this District, the Supreme Court of Indiana holds that a husband or wife may either testify in his or her own behalf, notwithstanding the other is joined as a party in the suit. Rogers vs. Rogers, 46 Ind. 1; Albaugh vs. James, 29 Ind. 398; Lowe vs. Hughes, Ib. , 399; Crane vs. Buchanan, Ib. , 570; Lockwood vs. Joab, 27 Ind. 423; Gee vs. Lewis, 20 Ind. 149; Howell vs. Zerbee, 26 Ind. 214; Clouse vs. Elliott, 71 Ind. 302.

         The same rule prevails in Virginia. Farley vs. Tillar, 81 Va. 275; Hayes vs. Va. Mut. Prot. Ass'n, 76 Va. 227.

         Also in Missouri. Bell vs. H. and St. J. R. R., 86 Mo. 599.

         Also in Wisconsin. Hoverson vs. Noker, 60 Wis. 511.

         2. If Mrs. Beale was not a competent witness, the judgment should nevertheless be affirmed, because the verdict must have been the same way without her testimony.

         The same substantial facts to which she testified were in evidence by the defendants' own sworn admissions in the bill in equity cause No. 8,974;...

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