Pope v. . Pope

Walker, J., after stating the case: There is one fatal defect in the objection of the plaintiff to the testimony of Mrs. L. B. Raynor and Troy L. Pope. It was .taken “to all of the foregoing testimony” — -that is, to the same as a mass, and not to the separate parts thereof. Some of the testimony is plainly competent, and even if the other part is not so, the objection fails, as it did not point out the incompetent testimony or separate it from the competent testimony, and assign error only as to it. R. R. v. Mfg. Co., 169 N. C., 165, 169; S. v. Ledford, 133 N. C., 722; Bank v. Chase, 15 N. C., 108; S. v. Stewart, 156 N. C., 636; Ricks v. Woodard, 159 N. C., 647; Quelch v. Futch, 175 N. C., 694. There is some of this testimony which did not disclose any transaction or communication between the witness and the deceased party, and for the most part it refers to what the plaintiff himself said or did, and he has had full opportunity in this respect to reply and give his version of the particular transaction. As to the other objection, the court was clearly right in confining the testimony of the plaintiff to those transactions or communications as to which the other witnesses had testified. As shown in Bunn v. Todd, 107 N. C., 266, recently quoted with approval in Irvin v. R. R., 164 N. C., 6, at p. 15, the exception is this: “When the representative of, or person claiming through or under the deceased person or lunatic is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction ” citing *287 Burnett v. Savage, 92 N. C., 10; Sumner v. Candler, 92 N. C., 634. We see, therefore, that the testimony of the other party, in reply, must be restricted to the same transaction which was the subject-matter of the principal testimony, or that of the other party, and the court, as we construe the record, so confined the plaintiff’s testimony, and consequently did not deny him any right to which he was entitled. The object of this wholesome statute (Revisal, 1631; Code, 590; C. C. P., 343) is well set forth in McCanless v. Reynolds, 74 N. C., 314, as follows: -“Allowing a party to an action to give evidence in his own behalf is a wide departure from the rules of evidence at common law, and the proviso in section 343, which fixes a limit to this departure, should be construed liberally. The effect of it is to exclude oue of the parties to a transaction, who is afterwards a party to an action concerning the right or property involved in the transaction, from the enabling clause of the statute, in the event of the death of the other party to the transaction. The proviso rests on the ground not merely that the dead man cannot have a fair showing, but upon the broader and more practical ground that the other party to the action has no chance, even by the oath of a relevant witness, to reply to the oath of the party to the action, if he be allowed to testify. The principle is, unless both parties to a transaction can be heard on oath, a party to an action is not a competent witness in regard to the transaction.” This rule of exclusion, if left absolute in form, might in certain cases, it was thought, work unequally, and therefore the exception was inserted to make it fair and just in its operation. There is nothing inequitable in requiring that the opposing testimony to that given in evidence by the other side should be limited to the same transaction or communication. It could not be otherwise without opening the door much wider than the necessity of the particular case justified. The court was right in excluding the testimony of the plaintiff as to the tenancy of W. B. Pope and his wife and as to the parol agreement that Mrs. Pope should have a life estate. This involved necessarily a direct transaction or communication between plaintiff and Mrs. Pope, who is dead, and comes within the inhibition of Revisal, sec. 1631. Harrell v. Hagan, 150 N. C., 242, and cases cited, and Boney v. Boney, 161 N. C., 614, where the parties are reversed, but the point decided is substantially the same as the one now being discussed. As to Cheatham v. Bobbitt, 118 N. C., 343, which was cited by the plaintiff’s counsel, it is not applicable, because there the witness spoke of a certain transactions, including the whole of it, and the court correctly permitted the other party to testify to the same extent in contradiction of his testimony. In this case, some of the proposed testimony related to matters clearly outside of or foreign to the particular *288 transaction or communication to wbicb the two witnesses had testified, and the court therefore properly closed the door to it. Abstractly considered, that part of the charge concerning the legal effect of a parol conveyance of the land, or rather and more correctly, of the oral lease of it to Mrs. Pope for her life — if evidence of it had been competent and the first four issues had not been answered as they were — would have been erroneous; and so would the other instruction, in regard to adverse possession, in which the word “adverse,” or ¿ny equivalent expression, was omitted whereby the bare possession, if continued for seven years, was made sufficient as a bar to plaintiff’s recovery. This omission evidently was an inadvertence. But these are not concrete questions, as the plaintiff’s case was cut up by the roots when the jury answered the first four issues, for these issues mean that plaintiff obtained the deed of 12 December, 1881, by fraud and undue influence, and there was ample evidence to support the findings. If he did not own the land, it can make no difference whether the possession was adverse or not. In ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary (Bettis v. Avery, 140 N. C., 184; Rumbough v. Sackett, 141 N. C., 495) ; it must be good against the world or good against the defendant by estoppel. Mobley v. Griffin, 104 N. C., 112; Campbell v. Everhart, 139 N. C., 503. It can make no difference whether defendant has the title or not, the sole inquiry being whether plaintiff, upon whom rests the burden, has it. If he fails to show that he has the title and right of possession, it does not concern him what right or title the defendant has, if any, or whether he has any at all. In this case, the foundation upon which rested the plaintiff’s right to recover has been destroyed by the verdict upon the first four issues. What we have just said regarding the instruction as to adverse possession applies equally to the exception relating to the parol conveyance or lease of the land or parol lease to occupy it during Mrs. Pope’s life. It may not have passed title to her, as said by the court, but if not, it may have been evidence of the nature of her possession, as it tended to show, if true, that she was let into possession by the plaintiff, and being in under him or by his permission, it could not be adverse, just like the case of a tenant who holds under and not against his landlord. But this is not a practical question, as plaintiff, under the verdict on the first four issues, had no title to be barred by adverse possession. The other questions would have become material only if he had won as to these four issues. The other exceptions are either covered by what precedes or they are so manifestly untenable as to require no separate discussion. *289 We are of tbe opinion that there was no error committed in the trial of the ease. No error.