Proulx v. Parrow, 331.

• Decision Date: 06 January 1948
• Docket Number: No. 331.,331.
• Citation: 56 A.2d 623
• Court: Vermont Supreme Court
• Parties: PROULX et al. v. PARROW et al.

56 A.2d 623

PROULX et al.

v.PARROW et al.

No. 331.

Supreme Court of Vermont.

Jan. 6, 1948.

Exceptions from Appeal from Chittenden County Court; Adams, Presiding Judge.

Proceeding for declaratory judgment to determine dividing line between adjoining properties by Albert Edward Proulx and Anna Proulx against David S. Parrow and Maude G. Parrow. Judgment for plaintiffs, and the defendants bring exceptions.

Reversed and remanded.

McNamara & Larrow, of Burlington, for plaintiffs.

Leary & Leddy, of Burlington, for defendants.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

MOULTON, Chief Justice.

The parties are adjoining landowners and derive their respective titles from a common grantor. This proceeding is a petition for a declaratory judgment to determine the dividing line between their properties. An issue of fact was submitted to a jury and a special verdict placed the line in accordance with the plaintiff's contention. Judgment was entered in accordance therewith, and the defendants have brought the cause to this Court on exceptions. The controversy has been here before in a different proceeding, when the present defendants were plaintiffs. See Parrow et ux. v. Proulx, 111 Vt. 274, 15 A.2d 835.

The two parcels of land owned by the opposing parties were originally one lot of about four acres, the property of Josephine Pagel and Marie L. Levesque who derived their title from Robert B. Miller and Anna D. Miller, by deed dated August 31, 1922. On April 8, 1929, these two deeded to Helen F. Chausse and Maurice H. Chausse, her brother-in-law, the portion of the tract now belonging to the plaintiffs, and described as follows: ‘Being the land and premises consisting of about two acres, together with all rights and title in land occupied by the Standard Oil Company under contract.

Said land and cottage are situated on the westerly side of Mallets Bay Road, so-called, leading from Burlington, Vermont, to Mallets Bay, said land has a frontage on the westerly side of Mallets Bay Road of 204 feet and is bounded on the north by land of Josephine Pagel and Marie L. Levesque, and on the south by land of Fred Richard and extends westerly to the westerly line of said Pagel and Levesque property and bounded on the east by Mallets Bay Road and contains about two acres, be the same more or less. The easterly part of said lot of land hereby conveyed with a frontage of 204 feet and 125 feet in depth is under contract of lease by the Standard Oil Company of New York.’ On April 16, 1932, Helen F. Chausse conveyed to the plaintiffs, by quitclaim deed, all her right, title and interest to the land deeded to her and Maurice Chausse by Pagel and Levesque, the description of the frontage on Mallets Bay Road, the boundaries and the approximate acreage being the same as in the previous deed. On July 28, 1932, Maurice H. Chausse quitclaimed all his right, title and interest in the same land to the plaintiffs. On April 22, 1933, both the plaintiffs conveyed the property to J. A. McNamara, and he, in turn, conveyed it to the plaintiff Anna Proulx, so that the title now stands in her name alone.

The defendant's title commences with a quitclaim deed from Josephine Pagel to Marie L. Levesque, dated January 25, 1935, conveying ‘A certain piece or parcel of land with buildings thereon situated near Mallets Bay, so-called, in the Town of Colchester, and being all and the same land and premises which was conveyed to the said Josephine Pagel and the said Mary Levesque by Robert B. Miller and his wife, Anna D. Miller, by warranty deed dated August 31st, A. D. 1922, and of record in Volume 14, page 22, of said Colchester land records; except that portion of said parcel of land that was conveyed to Morris and Ellen Chausse (sic) which consisted of two hundred four (204) feet frontage on said Mallets Bay Road with a straight line extending to the rear of said lot by the said Josephine Pagel and Mary L. Levesque and of record in the office of the own clerk in said Town of Colchester.’ Marie Levesque gave a warranty deed of the property, with the same description, to E. H. Reid on April 21, 1937, and on the same day Reid conveyed to the defendants ‘all the same land and premises that was conveyed by Mary L. Levesque to the said E. H. Reid by warranty deed dated April 21, 1937.’

Helen F. Knapp, formerly Helen F. Chausse, was called as a witness for the plaintiffs, and, subject to exception by the defendants, was permitted to testify that shortly before the conveyance of the property to Maurice H. Chausse and herself by Pagel and Levesque, both of whom had died before the time of the trial, Mrs. Levesque told her where the northern boundary of the land, which was to be the subject of the deed, was situated and pointed out its location on the premises. The only ground of exception is that the witness was incompetent under P.L. 1694, which, so far as here material, provides that: ‘In actions * * * where one of the original parties to the contract or cause of action in issue and on trial is dead * * * the other party shall not be admitted to testify in his own favor except to meet or explain the testimony of living witnesses produced against him, or upon a question upon which the testimony of the party afterwards deceased * * * has been taken in writing or by a stenographer in open court to be used in such action and is used therein * * *.’

The defendants' ground of error in the admission of this testimony is that the deed from Pagel and Levesque, both of whom died before the trial, to Mrs. Chausse (now Mrs. Knapp) was the contract or cause of action in issue and on trial, since the proceeding is a petition for a declaratory judgment as to one of the boundaries of the land thereby conveyed, hence that the witness, as the surviving party to the deed, was incompetent. The plaintiff's position that she did not come within the statutory prohibition, because, having parted with all her right, title and interest in the property, she was not testifying in her own favor.

This phrase has not been construed in any previous decision of this Court. But it is not to be assumed that it was placed in the act inadvisedly and without legislative intent that it should be given meaning and force in the application of the law. One of the fundamental rules of statutory construction is that the provision must be considered as a whole, and, if possible, effect given to every word, clause and sentence contained therein. In re Paquette, 112 Vt. 441, 446, 27 A.2d 129; In re Cornell, 111 Vt. 454, 459, 18 A.2d 151; Jacobs v. Holden Leonard Co., 110 Vt. 245, 250, 4 A.2d 343; Town of Brandon v. Harvey, 105 Vt. 435, 440, 168 A. 708. P.L. 1694 is an exception to the general rule of competency, having been originally a proviso in an act having for its object the removal and not the creation of disqualification, and therefore it should be given a construction inclining towards competency, although a reasonable one in view of the fraudulent practices against which the statute was aimed. Paska v. Saunders, 103 Vt. 204, 211, 153 A. 451, and cas. cit. Moreover, the act should not be given effect beyond the fair scope of its language. Farrington v. Jennison, 67 Vt. 569, 573, 32 A. 641.

By the terms of the statute two factors must concur in order to produce incompetency; (1) the witness must be the surviving party to the contract or cause of action in issue and on trial and, (2) the testimony must be in his own favor. Neither standing alone will suffice to reject the witness. With the former of these factors we have no present concern; the question arising under the latter is, When or under what circumstances does a witness so testify?

In the absence of any decision of our own upon this point the construction placed upon the same or equivalent words in similar statutes of other jurisdictions will serve to shed light upon the problem.

In Missouri (Rev.Stat.1939, § 1887, Mo. R.S.A.) a surviving witness is incompetent to testify ‘in his own favor.’ In Darnell v. Darnell, Mo.Sup., 174 S.W.2d 812, 816, 149 A.L.R. 1125, the Supreme Court of that State said that the statute ‘does not purport to disqualify the party to the contract or cause of action in issue and on trial from testifying, but only from testifying ‘in his own favor * * *.’ In other words * * * he * * * must have an interest in the case of action to be established by his testimony.' And in Ham & Ham Lead & Zine Inv. Co. v. Catherine Lead Co., 251 Mo. 721, 158 S.W. 369, 375, it was held that ‘in order to be rendered incompetent, the witness must be both interested and be a party to the contract or cause of action which was made with a deceased person.’ The survivor is not excluded from testifying under any and all circumstances, since the statute only limits his right to do so. Tarlton v. Johnson, Mo.App., 138 S.W.2d 49, 52.

The statutes of Wisconsin (Statutes 1945, § 325.16), New York (Civil Practice Act, § 347) and Washington (Remington Rev.Stats.1932, § 1211, as Amend. Chap. 84, para. 1, Laws 1927) provide that a surviving party shall not be a witness ‘in his own behalf or interest.’ We take this expression to be essentially the same as ‘in his own favor’. ‘In behalf of’ is defined as ‘in the interest of’, ‘in the support of,’ ‘for the benefit of’; and to favor is ‘to give support to, to sustain’, See Webster Int.Dict., 2d Ed., Unabridged. It is to be noted, also, that the phrase ‘in his own behalf’ was used as synonymous with ‘in his own favor’, in Ainsworth v. Stone, 73 Vt. 101, 103, 50 A. 805, a case involving the statute which is now P.L. 1694.

Concerning the Wisconsin act, it was held in Nolan v. Standard Fire Ins. Co., 243 Wis. 30, 9 N.W.2d 74, 77, that it ‘does not exclude testimony of persons who are not parties to and actually have no legal interest whatever in the subject matter of the action, although they may remotely be interested, in some other sense of that term, in the...