Deniston v. Hoagland

Mr. Justice Thornton delivered the opinion of the Court: The bill alleges that Deniston, one of appellants, bargained and sold his interest in the land in controversy to the father of appellees; that the purchase money was fully paid; that the purchaser, at the time of the sale, was in possession, and so continued for a number of years, and until his death, cultivating and improving the land; and that appellant, Pollard, had, before his pretended purchase and conveyance, full notice and knowledge of all the facts concerning the sale. The bill prays that the deed to Pollard be set aside, and that Deniston be compelled to convey to appellees. The court below rendered a decree in accordance with the prayer of the bill. Concede errors in the admission and rejection of testimony, there was evidence, clearly competent, sufficient to sustain the decree. The court rejected the testimony of appellant Deniston, and a part of the testimony of Pollard, and refused to exclude any of the evidence of Mrs. Kimner, or the evidence of Samuel Deniston, the alleged purchaser. We may consider the rejected testimony as heard and considered, and the decided preponderance of the evidence justifies the decree. Without collating the evidence, we think that the following facts are satisfactorily established: a verbal contract as to the bargain and sale of the land; possession and cultivation of the premises for a number of years; the payment of the purchase money, and full knowledge on .the part of Pollard, prior to the conveyance to him, of the entire transaction. These conclusions, however, can not be reached without the aid of thé testimony of Mrs. Kimner. It is urged, that she was incompetent as a witness by virtue of section five of the act of 1867. Sess. Laws 1867, 184. This section provides that no husband or wife shall be competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in certain cases specified. This case is not one of the exceptions. The section has no application to this case. The exclusion of husband or wife as a witness, can only be in a case where one or the other is a party, for, only under such circumstances could they testify for or against each other. The fact that the transaction or conversation occurred during marriage, does not alone constitute the prohibition. The wife must also be called as a witness for or against her husband. In this case, the husband was dead before the commencement of the suit, and could not, therefore, be a party; and even his estate has no interest in the result. It is also contended that the decree should be reversed because certain persons, whose rights might be affected, were not made parties. The bill discloses, upon its face, that Samuel Deniston left a widow, and that William Deniston has a wife. Where the want of proper parties is apparent on the face of the bill, the proper practice is, to take advantage of it by demurrer. But where the rights and interests of the persons not before the court, can not be materially affected by the final decree, it should not be reversed for the omission to make them parties. The interest of the wife of William is exceedingly uncertain and remote. The answer shows that she executed, with her husband, the deed to Pollard, and thus barred her right of dower if the husband owned the land. If he sold in fraud of the rights of appellees, as heirs of Samuel Deniston, she may possibly have a dower interest in the future. This could only happen upon the death of the husband, before her death. Her interest, therefore, depends on a contingency which may never occur. As to the widow, she had a dower only in an equitable estate, if one existed. If the purchase money, or some portion of it, had not been paid, she would have no right of dower. The object of the bill was, to establish the right to a title in her husband. A decree in accordance with the prayer was no injury to her, but a benefit. The interest of neither the wife nor the widow can be materially affected by the decree. Neither can be deprived of the right of dower, if it exist, but both are actually benefited by the decree. The wife regains a right of dower, dependent upon a contingency, which she had lost, and the widow has her rights established, so that the assignment of dower to her, by force of the decree, is a simple proceeding. We do not think the decree should be reversed because they were not made parties. As to the position that the contract was not in writing, and therefore prohibited by the Statute of Frauds, we have only to say that, even if the proof does not take the contract out of the statute, the defense is made too late. It is a rule well established, that a party, to avail himself of the Statute of Frauds, must plead it, or rely upon it in some manner. As this was not set up upon the hearing, it can not now be done. We are of opinion that the conveyance to Pollard was made in fraud of the rights of appellees, and affirm the decree. Decree affirmed.