Peacock v. Stott

• Decision Date: 28 February 1884
• Citation: 90 N.C. 518
• Court: North Carolina Supreme Court
• Parties: J. W. PEACOCK v. HENRY STOTT.

90 N.C. 518

J. W. PEACOCK

v.HENRY STOTT.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Fall Term, 1883, of NASH Superior Court, before Philips, J.

Upon excluding the evidence offered by the plaintiff (set out in the opinion here), the plaintiff excepted to the ruling of the court below and suffered a nonsuit and appealed.

Messrs. Connor & Woodard, for plaintiff .

Messrs. E. C. Smith and Fuller & Snow, for defendant .

SMITH, C. J.

The plaintiff as assignee of Alvin Peacock in this action seeks to set up and establish a parol trust in the land described in the complaint, arising out of a contract entered into by Wyatt Earp, Redding Richardson and A. J. Taylor, creditors, at the time when they purchased the same under the trustee's sale, and they seek to follow the land thus charged and enforce the trust against the defendant who has acquired the legal estate. Among the issues produced by the conflicting allegations contained in the pleadings, one in the following words was submitted to the jury:

Did Wyatt Earp, Redding Richardson and A. J. Taylor purchase the lands and take a deed therefor in trust to convey to Alvin Peacock, after the payment to them of the debts due them from said Alvin Peacock?

To sustain the allegation involved in the enquiry, the plaintiff introduced Alvin Peacock and proposed to put to the witness (Redding Richardson being dead) these interrogatories:

1. What conversation did you have with Wyatt Earp and A. J. Taylor, or either, regarding the purchase of your lands on the 24th day of December, 1856, sold that day by J. M. Taylor, the trustee?

2. Did you have any conversation with A. J. Taylor and Wyatt Earp, or either, at which Redding Richardson was not present, in respect to the purchase of this land? and if so, state it.

These questions asked successively were objected to, it being shown that the deceased was present at the conversation referred to in the first, and both ruled out by the court.

Thereupon the plaintiff suffered a nonsuit and appealed, and the only point presented is the admissibility of the proposed evidence when proceeding from the plaintiff's assignor.

The act which renders parties to a suit competent to testify generally, excludes, by its proviso, evidence of or in regard to “any transaction or communication between such witness and a person at the time of such examination deceased,” as against his personal representative then prosecuting or defending the suit (THE CODE, §590), and unless the case is within the scope of the exception, the testimony must be received.

That offered and now under consideration was not in strictness a conversation with the deceased, but with him and two others associated in the contract and united in interest. Nor does it come within the mischief which the restriction was intended to provide against; and the underlying principle is, in the sententious words of the late Chief-Justice, in McCanles v. Reynolds, 74 N. C., 301, at the conclusion of the opinion, “that unless both parties to a transaction can be heard on oath, a party to an action is not a...