Johnson v. Townsend

• Decision Date: 26 November 1895
• Citation: 23 S.E. 271,117 N.C. 338
• Court: North Carolina Supreme Court
• Parties: JOHNSON et al. v. TOWNSEND.

23 S.E. 271

117 N.C. 338

JOHNSON et al.

v.TOWNSEND.

Supreme Court of North Carolina.

Nov. 26, 1895'

Witness—Conversation with Decedent.

Code, § 590, excluding the testimony, in his own behalf, of a party interested in a suit, concerning a personal transaction between the witness and a deceased person, as against the personal representative then defending or prosecuting the suit, does not exclude the testimony of defendant as to a conversation with a decedent and two other persons who were associated with decedent in the transaction which is the subject of a suit, in which the personal representative of the decedent and such other persons were coplaintiffs.

Appeal from superior court, Robeson county; Brown, Judge.

Action by Margaret A. Johnson, administratrix, and others, against Elgate Townsend. There was a judgment for plaintiffs, and defendant appeals. Reversed.

McNeill & McLean and G. B. Patterson, for appellant

MONTGOMERY, J. This action was commenced by Margaret Johnson, administratrix of D. A. Johnson, deceased, and Margaret Johnson and Mary Johnson, sisters of the deceased, to recover an amount allegedto be due on a promissory note in the sum of $1,250 executed by the defendant to the Intestate and his sisters, the plaintiffs. The defendant admitted the execution of the note, but averred that it was void and of no effect in law because it was executed under a covinous agreement between himself and the payees, to enable them to defeat and defraud the creditors of the payees. The defendant on the trial testified: "I had a conversation with Margaret and Mary Johnson, in which they said they were in trouble, and wanted to make a deed to me for their land to prevent Rowland & McLean getting it, They wanted to know if I would make a deed back to them after it was all over. I said I would. They made the deed, and at the same time I signed and executed the note sued on in this action. They came to me about four or five months afterwards, and wanted me to make a deed back to them. I told them I would if they would pay me what they owed me. I claimed that they owed me one or two hundred dollars, which was owing to me." He then offered to prove by himself that D. A. Johnson, the intestate, was present at the time of the conversation testified to by him, and heard the conversation, and assented to it. This was excluded by the court, and the defendant excepted. The complaint and answer show that the subject of this action was a transaction in which the intestate and the other two plaintiffs were associated and united in interest. Section 590 of the Code excludes the testimony, in his own behalf, of a party interested in the event of the suit, concerning a personal transaction...