Johnson v. Cameron

• Decision Date: 18 October 1904
• Citation: 48 S.E. 640,136 N.C. 243
• Parties: JOHNSON v. CAMERON et al.
• Court: North Carolina Supreme Court

48 S.E. 640

136 N.C. 243

JOHNSON v. CAMERON et al.

Supreme Court of North Carolina

October 18, 1904

Appeal from Superior Court, Cumberland County; Peebles, Judge.

Action by J. H. Johnson, guardian, against L. A. Cameron and others. Judgment for plaintiff, and defendants appeal. Reversed.

Douglas J., dissenting in part.

Isaac A. Murchison and M. L. John, for appellants.

Thos H. Sutton, for appellee.

CLARK C.J.

This was an action for partition. The plaintiffs, children and grandchildren of Geo. W. Cameron, deceased, claim title under two deeds to him, dated January 2, 1869, but which have never been probated or recorded, and which were found in possession of W. M. Cameron, who was sole grantor in one deed and joint grantor in the other, and under whom the defendant Cleopatra Cameron claims. Said W. M. Cameron died in 1901. Geo. W Cameron died more than 20 years ago. The widow of W. M Cameron, having interpleaded and claimed an interest in the land, was made a party defendant. The sole issues submitted were as to the delivery of these two deeds. The widow of Geo. W. Cameron was allowed to testify that she saw W. M. Cameron hand said deeds to her husband. The Code (section 590) disqualifies a party to an action, or one interested in the event thereof, from testifying in his (or her) interest against the person claiming adversely as to "a personal transaction or communication between the witness and the deceased person or lunatic," except when the executor of such opposing party or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction or communication. But here the witness testified as to no transaction or communication between herself and W. M. Cameron. It was a transaction between W. M. Cameron and her husband, and as to that she is a competent witness notwithstanding her interest. State v. Osborne, 67 N.C. 259, McCall v. Wilson, 101 N.C. 600, 8 S.E. 225, and Loftin v. Loftin, 96 N.C. 99, 1 S.E. 837, are in point; as also Ballard v. Ballard, 75 N.C. 191, where Bynum, J., says that it is not by being a party to the action or interested in the event that one becomes disqualified, for, notwthstanding that fact, he is competent "except as to a transaction or communication between such witness and the person deceased." In Peoples v. Maxwell, 64 N.C. 313, it was held that, while an adverse party to the action was competent to prove the handwriting of the deceased, he could not prove that the deceased actually signed the paper; but that was where the paper was executed to the witness, and hence the signing was a transaction between the witness and the deceased. To the same purport is Bright v. Marcom, 121 N.C. 86, 28 S.E. 60. Here the deed was not delivered to the witness. The delivery was not a transaction "between the witness and the deceased," and her interest, under the above decisions and by the very language of the section, does not disqualify. There must be added the further fact that the delivery--the transaction--was between the witness and the deceased. Her interest was contingent, and subsequently acquired by her husband's death. She was not a party to the transaction. It may be that, if the statute disqualified in cases like the present, it would be, as is said in Isenhour v. Isenhour, 64 N.C. 642, "a desirable rule, but it is not the one adopted by the Legislature." This case does not turn upon the witness being a party or interested in the event (she is both); nor does it make any difference that she is in form a party defendant. Redman v. Redman, 70 N.C. 261, and other cases cited; Clark's Code (3d Ed.) p. 851. Nor does it come within those cases which turn upon the question whether the evidence tends to show a transaction or communication with the deceased, for a delivery of the deeds (if made) comes under that head. McRae v. Malloy, 90 N.C. 524. But the transaction with the deceased here testified to by a party to the action was not "between the witness and the deceased," and hence by the terms of the statute and by the decisions above cited the witness was properly admitted to testify in regard thereto. Lane v. Rogers, 113 N.C. 171, 18 S.E. 117; McCall v. Wilson, supra; Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043.

But the court erred in instructing the jury that, if they believed the evidence of L. A. Cameron (widow of George W.), to answer the issue (of delivery) "Yes." The evidence of Mrs Cameron was that she saw the deceased...