Carey v. Carey

• Decision Date: 24 March 1891
• Citation: 108 N.C. 267,12 S.E. 1038
• Court: North Carolina Supreme Court
• Parties: Carey v. Carey et al.

12 S.E. 1038

108 N.C. 267

Carey

v.Carey et al.

Supreme Court of North Carolina.

March 24, 1891.

Evidence—Declarations—Privileged Communications—Transactions with Decedent.

1. In an action by a father against his son's widow and her minor children to compel the conveyance to plaintiff of an undivided half of land which the father and son both purchased, but the title to which was taken in the son's name, the declarations of the widow, made with reference to the settlement of the title, are admissible when not proved to have been made by way of compromise.

2. Where such declarations are made by defendant to her counsel in the presence of plaintiff they are not privileged, and the counsel may testify to them, especially where he had acted as counsel for both parties, though at the time the declarations were made he was acting for defendant only.

3. In such action, where it appears that the son mortgaged the land, the mortgagee may testify as to the date of the cancellation of the mortgage, as that is not a transaction with a deceased person, evidence of which by a party interested is prohibited by Code N. C § 590, in actions by or against the representatives of decedent.

Appeal from superior court, Granville county; James H. Merrimon, Judge.

Moses Carey, plaintiff, and his son, Simeon Carey, contracted for the purchase of a tract of land, which was to be conveyed to them as tenants in common. There was a mortgage on the land, which the vendees assumed as a part of the purchase price. Desiring to borrow more money from the mortgagee, Raycroft, they agreed to execute to him another mortgage. In order to effect this, the title was conveyed to Simeon Carey, the son, who was then unmarried, with the understanding that, after the mortgage was paid, Simeon Carey should reconvey to his father an undivid ed half Interest in the land. Plaintiff and his son each paid half of the price. The land was purchased in 1877. Simeon Carey died in 1886, without having reconveyed to plaintiff, his father, an undivided half interest in the land. In the mean time he had married defendant, and left minor children. The mortgage was canceled in 1888. This suit was first brought to effect a compromise, and one attorney (Winston) represented both parties. The compromise failing, the original pleadings were stricken out by order of the court, and plaintiff was notified to employ counsel. Code N. C. § 590, prohibits, in actions by or against the representatives of decedents, evidence of transactions had with such decedent by an interested party. For former report, see 10 S. E. Rep. 156.

J. W. Hays, for appellant.

A. W. Graham, for appellees.

Shepherd, J. The plaintiff excepted to the exclusion of the testimony of the witness R. W. Winston. As it does not appear that the order permitting the withdrawal of the original pleadings was put in evidence, we are unable to see how any testimony tending to explain it was relevant or material. We are of the opinion, however, that the witness should have been permitted to testify as to "what transpired between the plaintiff and Jennie Carey in reference to the settlement of the title to the land." Jennie Carey was the widow of Simeon Carey, who had the legal title, and as such widow was an interested party to the action. She was also the general guardian of the infant heirs at law of the said Simeon, and was defending their interest as such guardian. The declarations and admissions of such a party are generally competent, (1Greenl. Ev. §§ 171-179; Steph. Dig. Ev. art. 28; Tredwell v. Graham, 88 N. C. 208; Adams v. Dtley, 87 N.C.356;) and there is nothing to show that the declarations sought to be proved were made by way of compromise. In Thompson v. Austen, 2 Dowl. & R. 358, Bayi.ey, J., remarked "that the essence of an offer to compromise was that the party making it was willing to submit to a sacrifice, and to make concession. " This is the true...