Shoemaker v. Powers

Browne, C. J. — This is an appeal from the decree of the chancellor in a suit for partition brought in Duval County by Mildred P. Shoemaker and William A. Shoemaker, her husband, against Arthur M. Powers, Irma M. Powers', Violet H. Shepherd and Louis A. Shepherd, her husband, William Harris Powers and L. Memminger. It is not necessary to set out in this opinion the genealogy of all the parties as shown by the bill, as the issue involved may be presented more tersely. As early as 1902 Margaret F. Powers owned the lands sought to be partitioned, and in February, 1911, she made a will which on her death was duly probated whereby she devised the lands involved, to her children, Mildred P. Shoemaker, Arthur M. Powers and Irma M. Powers, in equal proportions. It is claimed that on February 21st, 1902, she executed a deed to these lands to L. Memminger, who simultaneously executed a deed conveying the identical property to Stephen Powers, the husband of Margaret F. Powers. — 22 — Mildred P. Shoemaker, Arthur M. Powers and Irma M. Powers claim title through the will of Margaret F. Powers. William Harris Powers, one of the defendants, claims an interest in the property as an heir of his grandfather, Stephen Powers, who, it is claimed, derived title by the deed from Margaret F. Powers to Memminger, and by him conveyed to Stephen Powers in 1902. The defendants introduced in evidence a certified copy of a deed from the defendant, L. Memminger, purporting to convey the title to the lands' involved in this litigation to Stephen Powers, and sought to establish by parol testimony the fact that immediately preceding its execution a conveyance of the same property was executed by Margaret F. Powers and her husband, Stephen Powers, to Memminger. If the title to the lands was in Margaret F. Powers at the time of her death, Mildred P. Shoemaker, Arthur M. Powers and Irma Powers’ derived title thereto from the will, and William Harris-Powers, son of William Herbert Powers, who was the son of Stephen Powers, both deceased, was excluded from any share or interest in the lands and from any participation in a partition thereof. If, however, the title thereto passed from Margaret F. Powers to Stephen Powers, her husband, by a deed from them to .Memminger, and simultaneously, by deed from Memminger to Stephen Powers, William Harris Powers would share in the partition of the lands, because it is not denied that both his father, William Herbert Powers’, and his grandfather, Stephen Powers, died intestate. — 23 — The propei* disposition of the cause, therefore, depends on the question of whether Margaret F. Powers and Stephen Powers in their lifetime made a valid deed to the land in question to L. Memminger. To establish this the deposition of Memminger, then residing in Madras, India, was taken. He testified, in part, as follows: “The purpose of making and delivering the deed to me as explained to me by Mr. Powers and the others present at the time ivas to enable Mrs. Powers to convey property at the nominal consideration of $1.00 to me, which property I was to convey immediately thereafter to Mr. Stephen Powers also for the nominal consideration of $1.00 simply to place title back where it originally rested, Mrs. Powers for the purpose of vesting the title in her husband, Stephen Powers, joined with her husband and executed and delivered a deed of the property to me and on the same date in order to carry out the purpose of vesting the title in Stephen Powers I executed a deed to Stephen Powers. The request that I should take part in this transaction was made of me by men who were all considerably my seniors occupying as it seemed to me positions of responsibility and I therefore assumed that I was acting jointly witli them in a pro forma matter having been asked to do so because I was in the same building and happened to be in my room at the time. I was then quite young, twenty-two years old, but feel sure that with my habitual carefulness in such matters I was given assurances at the time by these older men which caused me to accede to their request. I hád no interest in the matter whatever. I do not remember explicitly the property. conveyed.by the deed, but to the best of my knowledge and belief the property conveyed was located in the City of Jacksonville, County of Duval, State of Florida. — 24 — * * * The two transactions were almost simultaneous and occurred at the same place. The conveyance of property by me to Stephen Powers immediately succeeded my receipt of the deed from Margaret and Stephen Powers. There could have been only a few moments’ interval between the two transactions. I remember that we were all in the reporters’ room (the room where I had my desk) at the time. The sole purpose of signing the deed was to place the title of the property in Stephen Powers 'as the original owner of the property.’’ Objections were'made to these depositions upon the ground that the defendants claim title through this witness and that the testimony offered relates to a transaction between him and a deceased person from whom he derived his title. The objections were overruled bv the chancellor at the hearing. The statute on this subject, Section 1505, General Statutes of Florida, 1906, is as follows: “No person, in any court, or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto; provided, however, that no party to such action or proceedings, nor any person interested in the event thereof, nor any person from, through or under whom any such party, or interested person, derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the executor, or administrator, heir-at-law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or the assignee or committee of such insane person or lunatic; but this prohibition shall — 25 — not extend to any transaction or communication as to which any such executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or committeeman shall be examined on his OAvn behalf, or as to which the testimony of such deceased person or lunatic shall be given in evidence.” “The purpose of this statute was to enlarge, not to restrict, the competency of parties as witnesses.” Robinson v. Dibble’s Administrator, 17 Fla. 457; Belote v. O’Brian’s Administrator, 20 Fla. 126; Adams v. Board of Trustees of Internal Imp. Fund, 37 Fla. 266, 20 South. Rep. 266. What was said in Adams v. Board of Trustees of Internal Imp. Fund, supra, so fully disposes of the question raised here, that Ave quote freely from it, rather than attempting to change or improve upon it. “This legislation seems to have been adopted totidem verbis from the State of New York, it having been originally Section 829 of the New York Code of Civil Procedure, but by subsequent revisions of that Code, renumbered as Sections 398 and 399 (10th Revised Edition Voorhees’ New York Annotated Code, of 1871). In passing upon this statute this court, in Robinson vs. Dibble’s Administrator, 17 Fla. 457, has said that its purpose was to enlarge, not to restrict, the competency of witnesses. Belote vs. O’Brian’s Administrator, 20 Fla. 126. In the thoroughly considered opinion of Judge Peckham, construing this statute, in the case of Hisenlord vs. Clum, 126 N. Y. 552, 27 N. E. Rep. 1024, it is said: ‘The expression, “interest in the event,” as used in our statute, was never intended to enlarge the class to be excluded under it beyond that which the common law excluded in using the same language.’ In other words, under the stringent rules of the common law all persons ‘interested in tits event’ of a suit were excluded from testifying in — 26 — such suit whether their antagonists in interest were living or dead. The purpose of this statute was to. remove this common law disability arising from interest in the event of litigation, except in cases where one of the parties to any 'transaction or communication’ was, at the time of the examination, dead or insane. In the latter cases the disabilities arising from interest in the event that were.-imposed by. the common law are, by the statute, retained. But in, such cases the statute disqualifies those only^vho were disqualified by the general rule of the common law. Any exception from the disqualification that was recognized by the rules of the common law would likewise form an exception to the cases intended to be excluded by the proviso to our statute. Where, then, a witness is objected to under the proviso of this statute as being disqualified because of interest in the event of the suit, the true test of his competency is by a resort to the common law. If he was competent by the common law he is competent under .the proviso to this statute, and vice versa. Darwin vs. Kreigher, 45 Minn. 64, 47 N. W. Rep. 314; Hanf vs. Northwestern Masonic Aid Ass’n, 76 Wis. 450, 45 N. W. Rep. 315. Under the common law the interest, in order to exclude a witness must have been some legal, certain ,and immediate interest, however minute in the result of the cause, or in the record as an instrument of evidence. Where actual gain or loss would result, simply and immediately from the verdict and judgment, the witness Avas deemed incompetent by reason of his interest; as, Avhere he was a party,- though but a nominal party, to the suit; or was a party in beneficial interest; or quasi a party, from having entered into a rule of court or agreement that another cause, to which he Avas a party should abide the same result with that in which he proposed to give evi — 27 — deuce. A witness was also incompetent by the common law where the record would, if his party succeeded, be evidence of some matters of fact to entitle him to a legal advantage, or repel a legal liability. In Greenleaf on Evidence, Sec. 390, it is said that ‘the true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence, for or against him, in some other action. It must be present, certain and vested interest, and not an interest uncertain, remote, or contingent.’ In construing the proviso to the statute under consideration the court of appeals of New York has uniformly applied to test as thus laid down by Mr. Greenleaf. Hobart vs. Hobart, 62 N. Y. 80; Wallace vs. Straus, 113 N. Y. 238, 21 N. E. Rep. 66; Connelly vs. O’Connor, 117 N. Y. 91, 22 N. E. Rep. 753; Eisenlord vs. Clum, 126 N. Y. 552, 27 N. E. Rep. 1024. It is well settled, however, that by the common law agents, carriers, factors and other servants, of this description constituted a class of special exceptions to the general rule that a witness interested in the subject of the suit is not competent to testify on the side of this interest.” Tested by-these rules we find that Memminger was not interested in the result of this suit in any degree, and the objeclons to his testimony were properly overruled. We have examined the record and fail to find anything that calls for reversal of the decree of the chancellor. Having found that the deposition of Memminger was properly admitted in evidence, it would serve no useful purpose to extend this opinion by discussing the. other questions raised, by the appellants. — 28 — The decree is affirmed. Taylor and Whitfield,, J. J., concur. Ellis and West, J. J., dissent.