Eakin v. Gwin

Opinion. Arnold, J.: It was proper to allow the appellee to prosecute his suit after he had made oath of his inability to give security for costs. The [37] oath prescribed by statute of a meritorious cause of action, and inability to give security for costs, answers for the prepayment of fees before suit is brought, and the rule to give security for cost, after suit is brought. Code, §§ 2368-2369. The statute which prohibits a person from testifying as a witness' to establish his own claim for or against the estate of a deceased person which originated during the lifetime of such deceased person, etc., did not disqualify the appellee from testifying as to transactions between him and Arnold in regard to the mule. The mule had been sold to the appellants by Arnold in his lifetime. It was not a part of his estate. No claim was asserted against his estate in this suit. The fact that Arnold’s estate might be affected by the result of the suit did not render appellee incompetent as a witness in the suit. Love et al. v. Stone, 56 Miss. 449; McCutcheon v. Rice & Co., 56 Miss. 455; Rothschild v. Hatch et al., 54 Miss. 554. The objection that L. E. Eakin is not a party to the suit is without merit. It is true she is not named in the affidavit upon which the writ was issued, but as one of the defendants she made bond and appealed from the judgment of the justice of the peace to the Circuit Court, and from the Circuit Court to this court. It was shown that she was the last purchaser of the mule in controversy, and it does not appear that she'anywhere objected to being considered and treated as a party to the suit, until a motion was made by her and her codefendant for a new trial in the Circuit Court. The contest in the Circuit Court was devoted mainly to the question whether or not appellee was indebted to Arnold at the time the latter obtained the mule. The true issue in the case seems to be whether or not the appellants are bona -fide purchasers for value, without notice of defect, if any existed, in Arnold’s title. If appellee consented for Arnold to have the mule, though his consent may have been obtained by artifice and fraud, and appellants bought from Arnold while in possession, in good faith, for value and without notice of any infirmity in his title, this title must prevail, and appellee’s remedy is against Arnold. Lee v. Partwood, 41 Miss. 109. The instructions to the jury and the trial in the lower court were not in accordance with these views, and the judgment is Reversed and cause remanded.