Jones v. . Emory

Avery, J.: The general rule {The 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 [Ihe Code, §590) is that neither a party interested in the event of the action, nor anyone 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 mem *164 ber 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 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. 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 follow that every such citizen is a proper or necessary party to a proceeding to lay off a public road, because the statute requires that every person interested must be notified and allowed the opportunity to resist the order asked for. It has been held that in such cases a reasonable construction, and one that can be applied as a test, must be adopted. 11 Am. & Eng. Enc., 422; Taylor v. Norval, 88 Ill., 527. So, too, we would say in common parlance that every citizen of a county or of a State is interested in collecting tax claimed as due to the county or State, when he has no such direct legal or pecuniary interest as would make him a proper party to a proceeding against a delinquent tax col *165 lector. We think that there was no error in admitting the testimony of Ephriam Emory. After the trial the defendant moved for a new trial on the ground that there was not sufficient evidence to establish a parol trust. We think the testimony that the plaintiff had entered upon the lánd more than twenty years before the trial, under a bargain with one Saintsing, who was a son-in-law of Willis Emory, and had built a house upon it, and had paid taxes and lived thereon undisturbed, claiming the property as her own, with her father, Willis Emory, until his death; that the proceeds of a sale of a horse, a gun and other personal property had been applied in payment of the purchase-money by her or for her, and that exchanges of portions of the two lots had been from time to time made, together with reasons given, according to the witnesses, for agreeing to have title to both lots made to W. C. Emory, the father of the defendants, was sufficient to go to the jury as tending to establish the parol trust. Shields v. Whitaker, 82 N. C., 519; Wood v. Cherry, 73 N. C., 110; Turner v. Eford, 5 Jones’ Eq., 106. The recognition of her right by W. C. Emory during his life by exchanging parts .of two lots so as to throw both into better shape, grows in importance when considered with the fact that the controversy did not arise till after the death of both Willis Emory and W. C. Emory. If the testimony for the plaintiff-is to be believed, in these exchanges the father of the defendants repeatedly recognized the rights and dominion of the occupant of the lot in controversy. This was a direct recognition of an adverse interest in her or her father. The other evidence tends to explain who was the claimant, and the jury have found that the consideration proceeded from, and the recognition of the right was intended for, the plaintiff. It is not material whether there was or was not conflicting evidence, if that offered by the plaintiff *166 was sufficient to go to the jury. Smiley v. Pearce. There was no error in submitting the issues to the jury. Affirmed.