Adams v. Barrett

• Decision Date: 31 August 1847
• Docket Number: No.44.,44.
• Citation: 3 Ga. 277
• Parties: James Adams, adm'r. of Amos Rose, plaintiff in error. vs. Ninian Barrett, defendant in error.
• Court: Georgia Supreme Court

3 Ga. 277

James Adams, adm'r. of Amos Rose, plaintiff in error. vs. Ninian Barrett, defendant in error.

No.44.

Supreme Court of the State of Georgia

AUGUST TERM, 1847.

In Equity. Upson Superior Court. Tried before Judge Floyd, April Term, 1847.

For the facts of the case, and the points made and determined, the reader is referred to the opinion delivered by the Supreme Court.

A. H. Chappell, for the plaintiff in error.

O. C. Gibson, for the defendant in error.

In support of the decision below, defendant in error submits, that the witness, Thomas F. Bethel, was properly excluded, because he is interested both in the event of the suit and in the record: he is interested to discharge his liability created by his guaranty, which would be done by a verdict for the plaintiff in error; which discharge would be manifest in a suit on his guaranty by defendant in error, by an exhibition in his defence of this record. Greenl. on Ev. secs. 404, 390, 392, 393, 395, 397; 2 Har & Gill R. 176; 6 Greenl. R. 416, 420; 2 Nott & McCord R. 153, 156; 1 Bailey R. 49, 364; 1 T. R. 296.

Nor can the witness remove his interest, but the contract, which in this case makes him quasi a party, must speak, and must settle the question of his interest. Greenl. on Ev. sees. 422, 423, 387; 2 Bailey R. 473.

And in all cases a release to restore competency, must be made by the party to whom he is liable. 1 Bailey R. 364.

Poe & Nisbet, for the defendant in error.

To the first ground of error, counsel for the defendant in error reply—

That the witness was directly interested in the result of the cause in which he was called to testify, because if by his testimony the deed should be decreed to be cancelled, Bethel, the witness, would be ipse facto discharged from his liability on his covenant to save defendant in error harmless.

All persons who have an actual legal interest in the result of a suit, are incompetent to testify. 1 Greenl. Ev. sees. 386, 392, 393; 1 Starkie Ev. 19, 20; 1 Phil. Ev. 36.

The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment. 1 Greenl. Ev. sec. 390; 1 Kelly 405.

Illustration of the nature of the direct interest that disqualifies the witness: 1 Greenl. Ev. sees. 392, 393; 3 Starkie R. 132; 1 T R. 164; 1 Greenl. Ev. sec. 397.

In reply to the second ground of error, counsel for the defendant in error contend—

That the refusal of the Court below to permit the plaintiff in error to examine the witness rejected, to be sworn and examined on his voir dire, was proper, because the test of the witness's competency had been determined by the instrument to which the witness was a party, and it was not competent for the party offering him to attempt to sustain him on the voir dire. 1 Greenl. Ev. secs. 422, 423; Mott vs. Hicks, 1 Co wen R. 513.

By the Court.—Warner, J., delivering the opinion.

It appears from the record in this cause, that a bill was filed in the Court below by the plaintiff in error, to cancel and set aside a deed executed by his intestate to the defendant in error, for a settlement of land in the county of Upson, on the ground, that the consideration for which said deed was executed was illegal. The deed conveying the land to the defendant in error, was executed by Rose, on the 12th day of March, 1842, by his attorneys in fact, and contained a general warranty of title.

Afterwards, on the 24th day of March, it appears, that James Adams and Thomas F. Bethel, for certain considerations therein expressed, executed under their hands and seals the following guaranty. After reciting that Rose had bargained and sold the aforesaid settlement of land, mentioned in the deed from Rose to Barrett, the instrument contains the following clause:

"The said James Adams and Thomas F. Bethel, the said bargained lands sold as aforesaid unto the said Ninian Barrett, hath agreed to guarantee and protect, and do by these presents guarantee, and will protect, the right and title to said lands unto said Ninian Barrett, his heirs, executors and administrators, against all and every mortgage, debt, judgment, execution, or legal liability against said Amos Rose, which could operate as lien or incumbrance upon said land, or destroy the title of said Ninian Barrett derived as aforesaid, and which said mortgage, debt, judgment, execution, or legal liability were in being at the time of making said deed of conveyance to said Ninian Barrett, from said Amos Rose by his attorneys in fact, &c."

This latter instrument, with the deed from Rose to Barrett, were attached by the complainant in the Court below as exhibits to his bill. On the trial of the cause in the Court below, the complainant called as a witness, to prove the illegal consideration of the deed from Rose to Barrett, Thomas F. Bethel, whose testimony was objected to by the defendant, on the ground that it appeared by the aforesaid guaranty attached to the bill of complainant, that he was interested in the event of the suit; and the Court being of the opinion that he was interested, so decided, and excluded his evidence. Whereupon the complainant excepted, and now assigns the same for error in this Court. [1.] Had the witness, Bethel, such an interest in the suit as ought to have excluded him? We think not; and will proceed to state the rule of evidence, and then apply the facts of this case to the rule. In 1 Greenl. Ev. 458, sec. 390, the rule is stated to be, that "The true test of the interest of a witness is, 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 [2.] other action. It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. And if the interest is of a doubtful nature, the objection goes to the credit of [3.] 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 exception to the competency, and if he fails satisfactorily to establish it, the witness is to be sworn." [4.] What are the facts relied on, to show that the witness had a "present, certain and vested interest" in the event of the suit. The facts relied on are, that the witness guaranteed under his hand and seal, to protect the right and title to the land conveyed by Bose to Barrett, "against all and every mortgage, debt, judgment, execution, or legal liability against said Amos Bose, which could operate as lien or incumbrance upon said land, or destroy the title of said Ninian Barrett, derived as aforesaid, and which said mortgage, debt, judgment, execution or...