Jordan v. McKinney

Morton, C. J. The only question presented is as to the competency of the testimony of Charles H. Snow, a witness called by the demandant. He testified that, about two months after the deed alleged to be fraudulent was given, Bernard McKinney, a son of the grantor, stated, in substance, that the deed was made for the purpose of defrauding the creditors of the grantor. It is too clear to admit of any doubt, that this statement of Bernard McKinney, being merely an expression of opinion by a party who is a stranger to the suit, was not admissible as substantive [439] evidence. The demandant "contends that it was admissible, because it contradicted the testimony of said Bernard given in his deposition for the tenant. Undoubtedly a party may impeach the credit and contradict the testimony of an adverse witness by showing that, upon some matter which is relevant and material, he has at other times made statements which are inconsistent with his testimony. But it is equally well settled that a party cannot, by drawing out, on cross-examination, statements by a witness which are irrelevant and collateral, gain the right to contradict such testimony by showing inconsistent statements of the witness at other times. Farnum v. Farnum, 13 Gray, 508. Kaler v. Builders’ Ins. Co. 120 Mass. 333. Bernard McKinney states in his deposition, upon cross-examination, that the tenant owns the dwelling-house, and that he and his family were occupying it by her permission. The statement that the tenant owns the house is merely an expression of his opinion,is incompetent either in direct or cross examination, and would have been stricken from the deposition, upon motion by the demandant. It is an immaterial and irrelevant statement, and the demandant cannot contradict it. The statement that the witness was occupying it by the permission of the tenant is material. He had occupied the house continuously for many years, both before and after the deed in question was given. If, after the deed was given, he continued to occupy under his father in the same manner as before, the knowledge of the tenant might be inferred, and the fact would have some tendency to support the ground of the demandant, that the deed was formal and fraudulent. The question, therefore, is the very narrow one, whether the statement made by Bernard' to Snow tended to contradict his testimony that he was occupying the house by the tenant’s permission. The substance of the statement to Snow was, “ I want you to attach the house; father has conveyed that away to defraud us boys of our legal rights and our creditors from being paid.” As to all the world except creditors, the deed was valid. Bernard could not contest it. We cannot see how the fact that he then thought, or now thinks, that the deed was fraudulent as to creditors, has any fair tendency to show that, since it was given, [440] he has not occupied by the permission of the tenant, who, as to him, was the legal owner. His statements to Snow are not inconsistent with, and do not contradict, his testimony in his deposition upon any material fact; and,1 as they were of a character which could not fail to be prejudicial to the tenant, we are of opinion that she is entitled to a new trial. Exceptions sustained.