Fowler v. Taylor

• Decision Date: 05 February 1952
• Citation: 97 N.H. 294,86 A.2d 325
• Parties: FOWLER v. TAYLOR.
• Court: New Hampshire Supreme Court

Page 325

86 A.2d 325

97 N.H. 294

FOWLER v. TAYLOR.

Supreme Court of New Hampshire.

Feb. 5, 1952.

William H. Sleeper, Robert Shaw and Wayne J. Mullavey, all of Exeter (Mullavey orally), for plaintiff.

Frank A. Batchelder, Exeter, and Russell H. McGuirk, New Market (McGuirk orally), for defendant.

JOHNSTON, Chief Justice.

Subject to exception the plaintiff was not allowed to testify to the talk he had with his uncle, the mortgagee, as to whether there was any money owing to the uncle on the mortgage at any time. The ruling of the Court was based upon R.L. c. 392, § 25: 'Executor Party. When one party to a cause is an executor, administrator or the guardian of an insane person, neither party shall testify in respect to facts which occurred in the lifetime of the deceased or prior to the ward's insanity, unless the executor, administrator or guardian elects so to testify, except as provided in the following section.'

The defendant claims title as assignee of the rights of the decedent mortgagee. Accordingly, any admissions of the latter made while he owned the mortgage were admissible against the assignee. 'Wherever the other person could by his acts have affected the title now held by the present party, the other person's admissions may be used as evidence in disparagement of that title.' IV Wigmore, Evidence (3rd ed.) 144, note 1. Blake v. White, 13 N.H. 267; Tenney v. Evans, 14 N.H. 343, 350; 31 C.J.S., Evidence, § 333, P. 1108; 20 Am.Jur. 516, 517, 522, 523.

Such testimony, of course, cannot be received from a party who is disqualified from testifying under the above quoted section 25. The said section is not pertinent to the present case because it applies only 'when one party to a cause is an executor, administrator or the guardian of an insane person * * *.' The defendant does not come within this classification. That the disqualification will not be extended to situations where others than those designated in the statute are parties was held in Crawford v. Robie, 42 N.H. 162. In this case, the defendant was an insane person and the decision was made before the amendment including guardians of insane persons with executors and administrators was enacted in General Statutes, c. 209, § 16, as suggested in the Robie opinion. See also, Oullette v. Ledoux, 92 N.H. 302, 304, 305, 30 A.2d 13.

Even when an administrator is a party, the disqualification of said section 25 does not apply if the administrator is the real party in interest. 'As the plaintiff is prosecuting this appeal in fact for his personal benefit, the defendant was properly admitted to testify.' Chase v. Chase, 66 N.H. 588, 592, 29 A. 553, 556. In the present case, the exclusion of the offered testimony of the plaintiff on the ground of the statute was error and there should be a new trial.

The argument of the defendant that the offered testimony was not admissible until certain preliminary facts were found by the Court, namely, that the statement was in fact made by the declarant and in good faith, is based upon Massachusetts cases. This argument is based upon a statute of that Commonwealth, R.L. c. 175, § 66, later G.L. c. 233, § 65, and the cases are not controlling here.

In order to bar foreclosure of the mortgage by reason of the statute of limitations, the plaintiff must show that the possession of the mortgagor, who lived upon the mortgaged premises from the time of the execution of the mortgage until her death December 1, 1947, was not by permission of the mortgagee but was adverse to him for the statutory period. Levensaler v. Batchelder, 84 N.H. 192, 196, 199, 150 A. 114. There was no such evidence and the dismissal was proper so far as...