Nixon v. . McKinney

Avery, J. after stating the facts: It is not necessary to pass upon the exception to so much of the deposition of C. H. Cofield, the bargainor in the deed alleged to be fraudulent, as bears upon the question of his good faith in executing it. The finding of the jury in response to the first issue, that it was made to defraud his creditors, eliminates from this discussion the competency of testimony that was palpably harmless unless the answer to that issue had been “ No.” The deposition of Cofield was offered for the defendants, and omitting all that was the subject of exception, his testimony, that he sold the land to T. B. Rollins for sixty dollars, which was a “full and fair consideration,” was allowed to go to the jury without objection. He was the acknowledged common source of title. The defendant Rollins claimed from him directly by virtue of the deed of May 1st, 1880, while the plaintiff claimed through mesne conveyances from a purchaser at Sheriff’s sale, made February 21st, 1883, under *28 a judgment rendered against Cofield at the Spring Term, 1882, of the Superior Court of Harnett County. The objection, therefore, to allowing the defendant Rollins to testify, at a subsequent stage of the trial, that he paid Cofield sixty dollars for the land, and that was full value, is not tenable, because “the testimony * * * of the deceased per.-on” (Cofield) had been “given in evidence concerning the same transaction” (the price paid and its inadequacy), and this case comes within the exception contained in the last clause of §590 of The Code. Testimony as to the private intention of a person when he executes a deed, is never competent for the purpose of changing its natural and obvious meaning, or adding new provisions, when its meaning is clear; but an ambiguous instrument can be construed b}r a parol testimony that does not contradict it 2 Whart. on Ev., §§ 935 to 939. Where, however, it is material to know whether a grantor acted in good faith in making a deed, or the motives of the grantee in taking the benefit of the conveyance, it is now an established rule that either may testify as to his intent in the transaction. Usually, circumstances that take a wide range, are deemed admissible to throw suspicion upon such transactions and impeach the integrity of the parties to them, and if a witness is competent to speak at all, his mouth cannot be sealed as to a question of which he has peculiar knowledge, and upon which the whole case depends. The rule has been laid down as a general one, applicable alike in civil and criminal cases, that a party will be allowed to testify, whenever his intent is material, subject to the exception already stated, that the evidence is not admissible, to vary the terms of a written instrument by which he is bound. Whart. on Ev., §§ 33, 482, 935; Bedell v. Chase, 34 N. Y , 386; Tracy v. McManus, 38 N. Y., 257; Whart. on Horn., §520: Particular facts are not admissible to prove the reputation of a party or witness to be either good or bad, for the reasons *29 that they do not necessarily tend to establish a general character; that they confuse the jury by raising collateral issuts, and especially that a party is presumed to be ready to defend his own general reputation or that of his witnesses, but not to meet specific charges against either without notice. Peterson v. Morgan, 116 Mass., 350; Whart. on Ev., §56; State v. Bullard, 100 N. C., 486; Barton v. Morphes, 2 Dev., 520. We think that there is no error in sustaining the objection to the testimony which plaintiff sought to elicit on the cross-examination of Grady, to the -effect that some witness had testified on the trial of another action that O. H. Oofield had forged a deed. The evidence offered was not only incompetent upon the grounds just stated, but was amenable to the further objection that it was mere hearsay. No error. Affirmed.