Weinstein & Bro. v. Patrick

*346 Reade, J. It is clear that under C. C. P., sec. 343, Marshall Stilly could not have offered himself as a witness to speak of the transaction between him and the deceased debtor; but here he does not offer himself, but is offered by the plaintiff to prove that the transaction between the deceased debtor and himself (Marshall Stilly) under which he claims title to the land, was fraudulent against the plaintiff. It would seem that there could be no objection against allowing Marshall Stilly to be offered .to testify against his own interest. And so far his Honor was right. But he not only allowed him to testify against his own interest as against himself, but also as against the'interests of the other defendants. And in that his Honor was in error. So much for general principles. But there is a special reason in this case why Marshall Stilly should not be called even by the plaintiff, because Marshall Stilly, although a defendant in form, is a plaintiff in substance, His interest is identical with the plaintiff’s. The plaintiff is a creditor of the deceased, and if the sale of the land to Marshall Stilly is declared void, he gets his debt. Marshall Stilly is also a creditor of the deceased, and if the sale of the land is void, he gets his debt. So that this case is like Redman v. Redman, 70 N. C. Rep., 257, where a defendant is treated as plaintiff. It is true that Marshall Stilley, in his conveyance of the land to one of his co-defendants, warranted the title, so that it is to that extent his interest to support the transaction between him and the deceased, and we do not know on which side this interest predominates; but under all the circumstances, we do not think that he was competent to speak of the transaction between him and the deceased. Reynolds v. McCandless, 74 N. C. Rep., 301. There is error. Per Curiam. Venire de novo.