Smalley v. Ellet

Mr. Justice Breese delivered the opinion of the Court: It is useless to deny, in the face of all the testimony appearing in this record, that the defendant, plaintiff in error, had full notice of all the rights and equities of the defendant in error in and to the property in question. In selling to Haven and Morrison, defendant’s rights were expressly reserved, and the amount of his claim retained in their hands, with which to satisfy it. So on the sale to Hamilton, there was the same reservation, and the money retained to satisfy the defendant’s claim. From all these facts, the inference is irresistible, that plaintiff in error, when he took the mortgage from Haven and Morrison, took it with the like reservation. The equities of defendant cannot be gainsayed or questioned. They are prominent in the whole transaction, and are prior in time to those of the plaintiff in error, and this is shown by other testimony than that of W. G. Smalley. The plaintiff in error, when the sale Was made to Haven and Morrison, knew that defendant was to extend the time for the payment of his lien, and all parties looked upon it, and treated it, as a prior lien. The objection that defendant did not take the mill into his possession, is answered by the fact, that it was upon defendant’s land, and therefore in his possession. As to the objection that W. C. Smalley was interested, and was therefore not a competent witness for complainant on the hearing, it may be replied, that the mere fact that he was a defendant to the bill did not make him incompetent. The inquiry is, whether he is swearing to promote his own interests. A defendant in chancery may be made a witness against his co-defendants, and if he has no interest adverse to the party against whom he is called, he is not incompetent. Nor is it an objection, that he has an interest in the event of the suit, unless his interest be against the party whose interest is sought to be prejudiced by his testimony ; and even when the witness has an interest in favor of the party calling him, he may still be competent, if it appears he has an equal interest on the other side. Dyer v. Martin et al., 4 Scam. 146. This was the position of W. C. Smalley. Joining with the plaintiff in error, in the sale to Haven and Morrison, he thereby warranted the title, and was responsible to them on that warranty. Being in the same position with regard to the defendant in error, his interest was balanced—he was therefore a competent witness, there being an implied warranty in both cases, the article sold being personal property. There being no error in the record, the decree must be affirmed. Decree affirmed.