Robb v. Lefevre

Woodward, J. After some hesitation, and examination, we have come to the conclusion that the testimony was admissible. The first objection is that of interest, and this is supposed to arise in two ways. First. Upon her waranty. Rut, so far as this is concerned, she is called against her interest This would dictate a bias against the party calling her. The books hold that the grantor in a deed, 152 may be called on the side opposed to his interest, or when his interest is balanced. Jackson v. Frost, 6 Johns., 135; Van Nuys v. Ferham, 3 Johns. Ch., 82; Hudson v. Halbert, 15 Pick., 423; Twambly v. Henley, 4 M. R., 441; Roberts v. Whitney, 16 Ib.,186; Leighton v. Perkins, 2 N. H., 427. Secondly. It is said that, by her testimony, sho would restore an estate in which she would have an interest, either as dower, or as a distributive share. ~We pass the consideration of the question, whether she would hold these interests, because we conclude that, whatever benefit might accrue to her, directly or indirectly, from her testimony, is balanced by her liability on her warranty. No reason is perceived why these interests and liabilities do not counter-balance each other, as fully as those which are shown in the cases above referred to. On the score of interest, therefore, we do not think the witness incompetent. Another reason alleged for her disqualification is, that she is the grantor in the deed. By this, we understand it to be urged, that the mere fact of being the grantor, is sufficient to disqualify, upon the ground that the grantor shall not be permitted to invalidate his deed. The idea here suggested is derived from a rule relating to negotiable paper, and the argument supposes it appropriate to perhaps all instruments to which the witness has set his name. But the rule is applicable to negotiable paper only, and is based upon considerations touching the nature and character of. the paper, and is not extended to deeds of conveyance. Hudson v. Hulbert, 15 Pick., 423. The test is held to be that of interest, or whether the judgment will be evidence for the witness. Same case, and Van Nuys v. Ferham, 3 Johns. Ch., 82, and the other cases cited above. It is the opinion of the court that the testimony should have been received. The judgment is, therefore, reversed, and the cause is remanded with directions to proceed therein.