Administrator of Seymour v. Beach

Williams, J., delivered the opinion of the Court. — The objections taken at the trial to the evidence offered to prove that the plaintiff was administrator, were manifestly groundless. The letter of administration from the probate court signed by the register, or the certificate of administration attested by the register, were either of them sufficient and proper evidence for that purpose. The first section of the probate act makes the certificate of administration, attested by the register, legal evidence, and as effectual as the letter of administration made out in due form. Moreover, it was decided in the case of Clapp vs. Beardsley, 1 Vt. Rep. 151, that under the general issue, the defendant cannot — 498 — deny the representative character of n plaintiff who sues as administrator. The objections also which were taken to the levy of the oxecu-11011 were properly overruled. The levy appears to be in the form given fay Judge Chspiian in his reports, published in 1795, which has been generally adopted by officers in this state in making their returns of levies of executions on real estate; and although it has frequently been intimated, that if it was a form recently adopted, it might not stand a strict scrutiny, yot it has always been decided to be good, both in the courts of our own state, and in the circuit court of the United States. It cannot now be over - turned without disturbing the title of much real estate, holden under levies made in this form. The statute in relation to levying executions on real estate, which was in force when that form was published, is essentially the same as the one now in operation, and the particular, where it is said, this levy is defective, viz, in not specifying that the appraisers were of the vicinity in the town where the estate levied on was situate, the direction of the statutes were precisely the same then as now. As, however, it is an acknowledged principle, repeatedly recognized by the decisions of courts, that to divest the title of a debtor iu his real estate, and vest it in his creditor by the levy of an execution, the officer who makes the levy must, in his return, specifically set forth a substantial compliance with all the requisites of the statute, it is evidently unsafe to rely any longer on this form ; but those forms of return should be adopted which set forth a compliance with the requirements of the statute in every essential particular. Another question arises in this case, whether Harvey H. Lawrence was properly admitted asa witness in behalf of the plaintiff. It has been contended by the defendant, that he was directly in interest in the event of this suit, and that it was against the policy of the law to admit any one to impeach his own deed. On the ground of interest, we think the witness offered ought to have been rejected; and on that account a new trial must be granted. The plaintiff on the trial was seeking to recover the title and possession of a piece of land which he had taken on an execution to satisfy a debt due to him from the witness, if he failed to recover, and obtain satisfaction of his execution by the levy on the land in question, he could resort to a scire facias, and obtain an execution for the debt against the witness. It is apparei.’, that the witness was directly interested to have (he plaintiff recover in this — 499 — suit; and thus have bis debt against the witness satisfied. If the land in reality belonged to the defendant, it was clearly for the advantage of the witness to have the plaintiff obtain a satisfaction of his debt from that land. It has been urged, however, that as the defendant claimed the land by a deed of warranty from the witness, the witness was indifferent, as between the plaintiff and defendant, and that his interest was balanced. This depends upon the consideration, whether the witness can be made liable to the defendant on his covenant of warranty, if the plaintiff recover in this suit. It is very clear, that if the witness is subject to an action on the covenant it will be on the ground alone that the defendant is evicted from the premises, and not from the fact that a recovery was had against the defendant on the testimony of the witness, as has been contended. It cannot be alleged as a breach of his covenant, nor can it be given in evidence in any action tiiercon, that the witness testified in the trial of an action of ejectment, in which tho validity of his deed was questioned. I think, however, that the witness cannot be made liable on the covenants contained in his deed to the defendant, in consequence either of the levy of the execution of the plaintiff, or of the plaintiff’s recovering in this action, if he should eventually recover, even though such recovery should be had on tho testimony of the witness. At tho time of this conveyance, the witness was the lawful owner of the land in question; and had a good title to the same, which he could lawfully convey to any one, who did not unite with him in an attempt to defraud his creditors. The witness, therefore, could not have been subjected to an action at the suit of the defendant, if the plaintiff should succeed in recovering in this cose, by proving that tho defendant’s deed from the witness was fraudulent. The authorities clearly show that in an action brought by the owner to recover damages for taking property in execution as the property of another, the debtor in the execution, for whose debt the property was levied on, is a competent witness for the claimant, although be may claim by a sale from the witness ; but is not a witness for the defendant in such action, whether he is tho creditor in the execution, or the sheriff who levied the same. The case of Giddings vs. Canfield, 4 Con. 482, may be referred to as establishing the former position, and the case of Bland vs. Ansley, 2 New Rep. 331, the latter. Tits witness was directly interested in favor of the plaintiff., as — 500 — he would be immediately liable in case the plaintiff failed to recover. This was not balanced by any liability which he could under to the defendant, as the defendant had no claim against him on the covenants of his deed, although the plaintiff should successfully impeach it on the ground of fraud between defendant and the witness, Without adverting to the other ground taken by the defendant’s counsel, we are of opinion that the witness was improperly admitted to testily on behalf of the plaintiff, and There must be a new trial. This cause was again tried at the county court in Chittenden-county, March term, 1831, Williams, J. presiding. The same question in relation to the right of the plaintiff to sue, and his title under the levy, was again raised and decided in favor of the plaintiff. Harvey H. Lawrence was again offered as a 'witness to show the deed to have been executed without consideration, having been discharged from his interest in the suit by the plaintiff. The release from the plaintiff, by which his interest was discharged, was admitted to be in every respect regular, if the plaiijliff had any authority to execute such a one, as would render the witness competent. The defendants objected to the admission of the witness, contending that the plaintiff as administrator could not discharge the witness; but that he would still remain liable to the heirs of the intestate ; and further, that it was against public policy to permit a witness to impeach his own deed on the ground of fraud, op a want of consideration. The objections were overruled, and the witness admitted. Exceptions were taken to the decision of the county courtand a verdict having been rendered for the plaintiff, the cause again came before the Supreme Court in Chitten-den county, January term, 1832, fora hearing upon the exceptions, and was argued by Mr. Adams, for the defendants, and by Messrs. B.aile.y and Marsh, foy the plaintiff., Williams J., delivered the opinion of the Court. — The questions as to the letter of administration, and the certiffcate of the register of probate, to show the right of the plaintiff to sue, and also the validity of the levy of the execution, under which he claims title, were considered and decided at the last term of this Court. It was also decided at the same term, that Lawrence was not a competent witness for the plaintiff, as he was debtor to him ; and the effect of his testimony would be to pay his own debt with — 501 — tbe property of the defendant; and tbe interest arising from this. was not counterbalanced by any liability which he was under to the defendant, in consequence of his deed to hint. This decision was made solely on the ground that the witness was interested in tbe event of the suit, without adverting to the question which has been raised on this argument. It is not contended'but that the release was properly executed, and that if an administrator can discharge the interest of a witness, in a case similar to the one under consideration, this witness was discharged from his interest. . The only liability which the witness was under was this ; that if the execution was not satisfied by the levy, he would be subject to another execution for the amount unsatisfied by the levy. To obtain this, a scire facias must be brought by the personal representatives of the deceased, who have the control of all the person-, al assets including all debts due. The administrator, therefore, was the only person who could discharge the witness from the debt due to the estate. A discharge from the heirs would have been wholly ineffectual. The release from the plaintiff was amply sufficient to discharge the debt, and to extinguish any interest which Lawrence had in the present suit. Considering that the witness was discharged from any interest in the event of the suit, the only question remaining is, whether there is any rule of law founded on considerations of public policy which should exclude this, or any other witness, similarly situated, from testifying to the facts which he was called on to prove. In general, all persons of sufficient discretion to know the obligation of an oath, of sufficient religious belief to feel its obligation, and who are not infamous, nor interested in the event of a suit, are admissible as competent witnesses. This is the general rule, and there should be no departure from it, except in a case of evident necessity. If we resort to considerations of public policy in determining who shall, or shall not, be admitted as witnesses, it ought surely to be in a case where the propriety of it is so obvious and apparent, that the mind is irresis-* tibly impressed with the necessity of such resort, to justify a de-> parture from the known and established rule. In the present case, we can see no reasons at all, arising either from propriety, or the interest of the public, which requires such a departure. So far as regards the witness, or the parties to a transaction like the one in controversy, the impropriety, and, l may add, the immorality, consists in their being parties to, a fraud-. — 502 — ulon4 transaction. and not in their disclosing it in a court of justice. And the public interest, if it has any claim, requires that the truth at all timos be disclosed, where any such transaction is the subject oí enquiry in a court of justice. There can be no ground for the distinction which has been urged, that the grantor may be a witness to support a deed, but not to defeat it. Indeed, if we were at liberty, judicially, to legislate on this, subject, we should be more disposed to reject him, when called for the former purpose, than for the latter j as’all experience shows that fraudulent grantors are much more disposed to shape their testimony to establish, rather than to defeat, a deed executed to defraud their creditors. The dangers which have, been suggested from thus admitting witnesses exist only in the imagination. They assume as then-basis, that the grantor becomes dissatisfied with the grantee, and is disposed by perjury and fraud to defeat his title. Whereas, his disposition is usually the other way. But. we cannot guard against attempts of this kind by any legislative or judicial determination. All persons are liable to be injured b.y perjury ; but so well calculated is our manner of trial to elicit the truth, that the attempt to injure in this way is usually frustrated, and perjury and fraud are generally met by destroying, the credit o.f the perjured witness, or by contradicting bis testimony. The authorities upon this subject are certainly very conclusivo. In the case of Title vs. Grevett, 2 Lord Ray. 1008, it was decided, that a man who conveys land may be a witness to prove that he has no title. Although some doubts upon this question were expressed by Judge Sewell, in the case of Storer vs. Batson, (8 Mass. 441,) yet after argument and consideration it was decided by the Supreme Court of Massachusetts, in the case of Loker vs. Haynes,(11 Mass. 498,) that the grantor of a deed,not being interested in tb.e event of the suit, is a competent witness to shew that the deed, was fraudulent. A decision precisely similar was made by the, Supreme Court of the state of New York in the case of Jackson ex dem. Mapes vs. Frost and Haff, (6 Johns. 135.) And the case from 4 Con. 482, before referred to, is to the same effect. The maxim, from the civil law, that a witness cannot be permitted to allege his own turpitude, or to disprove an instrument to which lie is a party or witness, has long ceased to be recognized, except in a particular case. It will be seen, that to adopt it to the extent contended for, would exclude the subscribing witness to a — 503 — will or deed, as well as tho magistrate who takes tho acknowl-edgement; and would oiTectually shut out all testimony, which would tend to elucidate the facts and circumstances attending execution of the instrument. It is sufficient to say that such a rule? has not and cannot be adopted. ' We are aware of the decision in the case of Walton vs. Shelly, (1 Term, Rep. 206,) which has been so much pressed and insisted upon in the argument of this case. It will be observed, however, that if the doctrine of that case was recognized, it only applies to the party to a particular kind of written instrument, viz. negotiable notes, and never has been extended further. Both in Massachusetts and New-York, where the law of that case 1ms been fully adopted, it has not been considered as applicable to a case similar to the one under consideration ; but from tho cases before referred to, decided in those states, it appears that in regard to deeds a rule different, and similar to the one we establish in this case, has been adopted. Of the case of Walton vs. Shelly it may be remarked, that it was an anomaly in the law of evidence — short lived in England— not recognized in this state, but expressly rejected in tho case of Nichols vs. Holgate et al. (2 Aik. 138.) Whether the case of Nichols vs. Holgate et al. would now be overruled or recognized, or whether it ever will be, it is not for mo to say. But I presume it will not be overruled until a case is presented which directly requires that it should be reviewed, and the court upon due deliberation should find the law to be otherwise than it was considered to be in that case. We are not now required to review or reverse that decision. The judgement of the county court must be affirmed.