Jones v. Emory

• Citation: 20 S.E. 206,115 N.C. 158
• Court: North Carolina Supreme Court
• Decision Date: 24 October 1894
• Parties: JONES . v. EMORY et al.

20 S.E. 206

115 N.C. 158

JONES .

v.EMORY et al.

Supreme Court of North Carolina.

Oct. 24, 1894.

Competency or Witness—Transactions with Decedent.

In an action for land, a person living as a member of plaintiff's household on the land, and aiding in her support, is not a party "interested in the action" (Code, § 590), so as to be incompetent to testify in regard to a transaction with the deceased father of defendants.

Appeal from superior court, Wake county; Hoke, Judge.

Action by Rowan Jones against Elizabeth Emory and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

T. R. Purnell, for appellants.

Armistead Jones, for appellee.

AVERY, J. The general rule (Code, § 589) is that no person offered as a witness shall be excluded on account of his interest in the event of the action. The exception (Code, § 590) is that neither a party interested in the event of the action, nor any one from, through, or under whom such interested person derives his interest or title by assignment or otherwise, shall be examined as a witness, etc., concerning a personal transaction or communication between the witness and the deceased person. The witness Ephriam Emory lived with the plaintiff on the land in controversy, and helped to support her. If she should lose the suit he would seek a home elsewhere with her, but he had no legal or pecuniary interest in the lot in controversy. The statute does not disqualify every witness who, in the broadest sense of the term, is interested In the event of the action, but only such as have a direct and substantial or (to apply the principle more exactly to the case before us) a direct legal or pecuniary interest in the result Unless the witness bear such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action, he is not disqualified to testify. The fact that the witness, as a member of the family, must move out along with the servants of the plaintiff if the defendant should prevail in this suit would not he being neither privy nor party, estop him from setting up a claim to the land in a future action as against the present defendants. Were this record offered in such a suit, it would be res inter alios acta. Mull v. Martin, 85 N. C. 406; Williams v. Johnson, 82 N. C. 288; White v. Beaman, 96 N. C. 122, 1 S. E. 789. When we ignore this test, and give to the word "interest, " as used in statutes, a meaning so broad as to include every person who stands in such a relation to the controversy as would naturally be calculated to enlist his prejudices for or excite favorable emotions in his breast towards the party on whose behalf he is introduced as a witness, we embark on a sea of uncertainty, without chart or compass. This same principle was evidently applied in Lawrence v. Hyman, 79 N. C. 209, where the testimony of one of the trustees of a church, who was a party, was excluded as to such a transaction, while that of members who worshiped in the congregation was admitted. To show how unsatisfactory it would prove to dispense with this test one need but recall the fact that every citizen is interested in having good roads constructed in the county in which he resides, but it does not...