Sherrill v. . Wilhelm

Stacy, J. Plaintiff contends tbat tbe evidence of R. J. Plott in regard to tbe personal transactions and communications which be bad witb Dr. Wilhelm, tbe deceased, concerning tbe purchase of tbe land in question for plaintiff, etc., is incompetent under C. S., 1795, and should have been excluded. It will be observed tbat Plott is tbe common grantor from, through, or under whom both parties claim title, mediately or immediately, “by assignment or otherwise,” to tbe locus in quo. Thus it would seem tbat tbe evidence given by tbe witness falls directly within tbe inhibition of tbe statute, being offered, as it is, against tbe defendant, wbo also derives bis title or interest “from, through, or under a deceased person,” to wit, Dr. Wilhelm, tbe party witb whom tbe witness bad tbe personal transactions and communications, and about which be testified over objection by tbe defendant. Sorrell v. McGehee, 178 N. C., 279; Irvin v. R. R., 164 N. C., 6; Bunn v. Todd, 107 N. C., 266. Practically tbe same question here presented arose in tbe case of Carey v. Carey, 104 N. C., 171, and it was there decided tbat evidence similar to tbat now under consideration was properly ruled out. Tbe Court saying: “Tbe plaintiff offered, on tbe trial, to prove by tbe witness Wheeler tbat be and bis deceased son purchased from tbe witness tbe land in controversy. He plainly claims an 'interest’ in it against tbe *675 defendants, wbo are beirs at law of bis deceased son, by virtue of tbe purchase from tbe witness; be alleges tbat be paid to bim part of tbe purchase money; hence, be ‘derives bis interest’ in tbe land, whether it be legal or equitable, from tbe witness, through tbe deceased son — tbe witness is tbe source of bis interest, whatever it may be. It was proposed to have tbe witness testify as to a personal transaction or communication between himself and tbe deceased son, tbe father of tbe defendants, wbo claim under bim. Nothing to tbe contrary appearing, it was proposed to prove such a transaction — this is just implication. If it were not such, tbe plaintiff should have so shown, and rendered tbe witness competent. It might possibly be tbat tbe son was not present at tbe purchase; tbat tbe witness did not communicate with bim on tbe subject, and if this was so, tbe plaintiff bad tbe right to prove tbe fact if be could. So far as appears, tbe witness was not competent to prove tbe purchase of tbe land, as proposed by tbe plaintiff, because tbe purchase was a personal transaction with tbe deceased father of tbe defendants, wbo claim under and derive their title from bim, and because tbe plaintiff, claiming adversely to tbe defendants, derives bis interest in the land from tbe witness, as do, also, tbe defendants.” It is true this case was modified, in part, on a second appeal, 108 N. C., 271, but not in respect to tbe above ruling. We think a fair test in undertaking to ascertain what is a “personal transaction or communication” with tbe deceased about which tbe other party to it cannot testify is to inquire whether, in ease tbe witness testify falsely, tbe deceased, if living, could contradict it of bis own knowledge. Carey v. Carey, supra. Death having closed tbe mouth of one of tbe parties, it is but meet tbat tbe law should not permit tbe other to speak of those matters which are forbidden by tbe statute. Men quite often understand and interpret personal transactions and communications differently, at best; and tbe Legislature, in its wisdom, has declared tbat an ex parte statement of such matters shall not be received in evidence. Such is tbe law as it is written, and we must obey its mandates. Applying these principles, as previously declared, it would seem tbat tbe evidence of tbe witness Plott, which forms tbe basis of defendant’s second exception, should have been excluded. For tbe error in receiving same oyer objection made in apt time, a new trial must be granted, and it is so ordered. New trial.