Thompson v. Herring

Moore, J. The judgment in this case must be reversed. The ruling of the court in admitting the declarations of Lewis after his conveyance to Thompson, for the purpose of showing fraud on the part of Thompson, was clearly erroneous. It is perfectly well settled that the declarations of a party not in possession, after he has parted with the title, can not be received for any purpose against his vendee. He cannot, by his declarations or admissions, affect or disparage the title of his vendee. Such testimony is clearly hearsay. The objection to the examination of M. D. Herring on the issues involved in the original suit, to which his testimony seems to have been limited by the court, was properly overruled. The witness was not a party to the original suit, and is not shown to have had any interest which would disqualify him from testifying in it. The appellant Thompson filed an answer in the nature of a cross bill, to which he made the witness, M. D. Herring, a party defendant. But by doing so he could not deprive the plaintiff in the original suit of Herring’s testimony upon the issues involved in it, and which could in no way affect the result of the cross bill against him. If the witness was permitted on his examination to extend his testimony beyond the bounds of its legitimate limits, it is no reason why he should have been altogether excluded from testifying. Exception should have been taken to such parts of his evidence as were improper. The exception to the depositions of the witnesses Drury and Orudup for want of service of the notice and copy of interrogatories was properly overruled. The fact of notice was sufficiently established to admit the deposition to be read as evidence to the jury. It is not deemed necessary in the present attitude of the [286] case to consider any of the other questions that have been presented by the assignment of errors. The judgment is reversed and the cause remanded. Reversed and remanded.