Judevine v. Weaks

The opinion of the court was delivered by Redfield, J. The plaintiff claims title to the property in question by virtue of a sheriff’s sale on his execution against one Williams. The action is trover; the plea is general issue, with notice of special matter, that defendant would prove on trial that the sale of the property to the plaintiff was collusive and fraudulent, &c. I. “The defendant introduced as a witness in his behalf one Chas. 0. Davidson, who testified that he worked for defendant in the summer of 1878, and that he heard a conversation between defendant and said Williams, at which plaintiff was not present;” and against plaintiff’s objection and exception the witness testified: “I heard defendant say to Williams, ‘If you pay me I shall fulfil on my part.’” The exceptions state, in explanation of the ground and reason of admitting the evidence: “ The defendant had testified that, at the time he paid Williams for the property, he had told him if he paid him back he might have the property back. There was in issue whether defendant had [281] paid Williams for the property; this evidence was received as bearing on that issue, and corroborative of the defendant.” This was not a part of a conversation in which defendant claims he made a contract with Williams for the purchase of the property; but a subsequent, naked declaration of the defendant in his own favor; and its admission as testimony, under objection and exception, was error. If the defendant’s declaration in his own favor is legally admissible for any, it must be for all purposes; and the reasons given in the exceptions, that it tended to corroborate the testimony of the defendant, that he had before that bought the property of Williams, does not make it any more legal testimony. II. The court charged the jui'y, “that the burden of proof was on the plaintiff, not only to show that he purchased the buckets at said sheriff’s sale, but that said sale was a bona fide sale, made in good faith, with the intention and purpose on the part of plaintiff and Williams of passing the title of the property to the purchaser, and applying the avails of the same on the plaintiff’s execution.” The sale of the property was in regular form on the plaintiff’s execution; and the return of the officer vested the apparent title in the plaintiff; if that apparent title is to be impeached, the defendant takes the burden of impeachment, under his plea and notice. The sheriff’s sale of the property on the execution vested the title of the property sold in the purchaser; and the proceedings are supposed to be bona fide. In the charge of the court, therefore, there was error. III. The enquiry of the plaintiff while on the stand whether he had taken the deposition of Williams we think proper. Williams would be supposed to know all about the sale of the property to the defendant, if any was had; and if the deposition was taken and not used, it would be pre [282] sumed to contain evidence against the party suppressing the testimony. Such enquiries should be largely within the discretion of the court. But we think the enquiry of the plaintiff as to the contents and subject-matter of the deposition was in excess of the true legal rule of practice. A party has a right to take the deposition of an adverse or suspected witness, and is without fault, if he does not interfere with the freedom and right of his adversary to obtain his testimony; and is at perfect liberty to use, or decline to use, such testimony; and should not be subjected against his will to disclose the contents of such deposition; besides, the deposition itself, if its contents are made testimony, are the better evidence. Reversed and remanded.