John v. Lofland

• Decision Date: 28 October 1895
• Citation: 64 N.W. 930,5 N.D. 140
• Parties: ST. JOHN v. LOFLAND.
• Court: North Dakota Supreme Court

5 N.D. 140

64 N.W. 930

ST. JOHN

v.LOFLAND.

Supreme Court of North Dakota.

Oct. 28, 1895.

Syllabus by the Court.

Section 5260, Comp. Laws, does not prohibit a party to an action from testifying in his own behalf to a personal transaction (in this case, payment) had with a deceased administrator, as against the successor of such deceased administrator, who sues to enforce, as part of the assets of the estate of the intestate, the claim which the party testifies he paid to the deceased administrator as administrator of the estate of such intestate.

Appeal from district court, Steele county; William B. McConnell, Judge.

Action by Sydney S. St. John, administrator of Albert C. St. John, against John F. Lofland. Judgment for defendant, and plaintiff appeals. Affirmed.George Murray, for appellant. F. W. Ames, for respondent.

CORLISS, J.

The decision of this case will turn upon the construction of Comp. Laws, § 5260. The action was to foreclose a mortgage given to secure a promissory note. The note and mortgage were executed by defendant. The consideration for the note was the sale to defendant by Lydia B. St. John, as administratrix of the estate of Albert C. St. John, of certain personal property, constituting a portion of the assets of such estate. The note and mortgage were both executed to such administratrix. Subsequently she died, and the plaintiff was appointed administrator of the estate in her place. The defense to the action is payment. To prove it, the defendant himself testified that he paid the note and mortgage to Lydia B. St. John, as administratrix, during her lifetime. This evidence was objected to as incompetent, under the provisions of Comp. Laws, § 5260. The objection was overruled, and the plaintiff excepted. The court having found on this evidence that the debt had been paid, judgment was rendered for the defendant. From this judgment the plaintiff has appealed. We think that the evidence was competent. The section referred to (5260) reads as follows: “No person offered as a witness in any action or special proceeding, in any court, or before any officer or person having authority to examine witnesses, or hear evidence, shall be excluded or excused, by reason of such person's interest in the event of the action or special proceeding; or because such person is a party thereto; or because such person is a husband or wife of a party thereto, or of any person in whose behalf such action or special proceeding is brought, opposed or defended, except as hereinafter provided: * * * (2) In civil actions or proceedings by or against executors, administrators, heirs at law, or next of kin, in which judgment may be rendered or order entered, for or against them, neither party shall be allowed to testify against the other, as to any transactions whatever with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party. But if the testimony of a party to the action or proceeding has been taken, and he shall afterwards die, and after his death the testimony so taken shall be used upon any trial or hearing in behalf of his executors, administrators, heirs at law, or next of kin, then the other party shall be a competent witness, as to any and all matters to which the testimony so taken relates.” The extent to which this statute seals the lips of a party is with regard to “any transaction with or statement by the testator or intestate.” The definite article “the” makes it certain that the testator or intestate referred to is the one whose executor or administrator is the party to the suit, and not any testator or intestate with whom the transaction has been had or by whom the statement has been made. But we are urged to broaden this statute by interpretation, on the theory that its true spirit demands an expansion of its literal meaning. If we were to do this, we must, if we would be logical and consistent, continue in the same line; and hence we would be compelled to hold that a transaction with a deceased agent was within the statute, for in that case, as in this, the surviving party would have the advantage of testifying without the possibility of his evidence being contradicted. So, where one of two partners had died, and the survivor, who, so far as the partnership assets are concerned, occupies a position very similar to that occupied by an administrator, should sue on a partnership claim, we would have to hold that a debtor of the firm could not in such action by the surviving partner swear to a payment made by him to the deceased partner in his lifetime. This so-called “spirit” of the statute would embrace such a case also.

So far as a transaction with a deceased agent is concerned, there is express authority for the doctrine that, under such a statute as ours, the transaction may be proved by the testimony of the debtor. Voss v. King (W. Va.) 10 S. E. 402. This whole argument that the letter of this law should be expanded to the dimensions of the spirit of the statute rests on a false assumption as to the spirit of this legislation. The general policy of the section is to make all persons competent witnesses. So far as the question of the extent of the limitations of that policy is concerned, the only way we can ascertain the scope of this limitation is by looking to the language in which that limitation is expressed. We cannot look beyond the language. We cannot say that it was the purpose of the legislature to exclude all evidence merely because the witness from whose lips it might fall would enjoy the advantage of testifying to a transaction with a deceased person, who on that account could not confront and contradict him. Statutes which exclude testimony on this ground are of doubtful expediency. There are more honest claims defeated by them by destroying the evidence to prove such claim than there would be fictitious claims established if all such enactments were swept away, and all persons rendered competent witnesses. To assume that in that event many false claims would be established by perjury is to place an extremely low estimate on human nature, and a very high estimate on human ingenuity and adroitness. He who possesses no evidence to prove his case save that which such a statute declares incompetent is remediless. But those against whom a dishonest demand is made are not left utterly unprotected because death has sealed the lips of the only person who can contradict the survivor, who supports his claim with his oath. In the legal armory, there is a weapon whose repeated thrusts he will find it difficult, and in many cases...