Honeycutt v. . Burleson

Adams, J. Tbe plaintiff’s wife was permitted to testify concerning the execution and tbe terms of tbe alleged contract between tbe plaintiff and tbe testator of tbe defendants, who was tbe mortgagee. An exception of the appellants contests tbe competency of her testimony on these points. Upon tbe trial of an action a party or a, person interested in tbe event shall not be examined as a witness in bis own behalf or interest against tbe executor, administrator, or survivor of a deceased person concerning a personal transaction or communication between tbe witness and tbe deceased, except in-certain instances which are not material in this case. C. S., 1795. Tbe two immediate questions are whether tbe plaintiff was interested in tbe event of tbe action and whether she testified in her own behalf or interest to a personal transaction with tbe deceased mortgagee. That she testified to a personal transaction is beyond controversy. A married woman upon tbe death of her husband intestate, or she shall dissent from bis will, shall be entitled to an estate for her life in one-tbird in value of all tbe lands, tenements, and hereditaments whereof her husband was seized and possessed at any time during coverture, and in like manner to such an estate in all legal rights of redemption, equities of redemption, or other equitable estates in land whereof her husband was seized in fee at any time during tbe coverture, subject to all valid encumbrances existing before tbe coverture or made during tbe coverture with her free consent lawfully appearing. C. S., 4100. *39 Tbe plaintiff was not married at tbe time be executed tbe mortgage to E. B. Hartwick; tbe mortgagee, therefore, beld tbe legal title to tbe mortgaged land subject to tbe right of redemption. Lewis v. Nunn, 180 N. C., 159; Hogan v. Utter, 175 N. C., 332; Lumber Co. v. Hudson, 153 N. C., 96. Upon her marriage bis wife became dowable of an equity of redemption in tbe mortgaged property. If tbe land had been sold and tbe purchase price bad not exceeded tbe debt there would have been no proceeds subject to her claim; if there bad been an excess tbe value of her interest would have been much less than if tbe mortgage bad been canceled, for in tbe latter event she would be dowable of tbe entire unencumbered tract. Tbe cancellation of tbe mortgage was a matter in which she bad a direct pecuniary interest. Section 1795 applies, not only to a party, but to any person having a pecuniary or legal interest in tbe event of tbe action. Jones v. Emory, 115 N. C., 158. Upon this principle it was beld in Linebarger v. Linebarger, 143 N. C., 229, that upon an issue of d&vJsa\oit v'él non tbe wife of a caveator, who was also an heir at law of tbe testator, was prohibited from testifying to declarations of tbe testator tending to show undue influence. If her husband bad acquired an interest in tbe land tbe wife would at once have been entitled to an inchoate right of dower. In Helsabeck v. Doub, 167 N. C., 205, tbe wife’s testimony was beld to be competent for the reason that if her husband recovered tbe value of bis services to tbe deceased she would have no right growing out of tbe marriage relation which would attach to tbe money recovered. Indeed, tbe distinction between tbe two is pointed out in tbe latter case. Tbe wife’s testimony concerning a personal transaction with tbe testator should have been excluded, and its admission entitles tbe defendants to a New trial.