Vannatta v. Willett's Administrator

JUDGE WHITE delivered the opinion of the court. In an action to settle the estate of H. H. Willett, deceased, appellant, Vannatta, filed a note, properly proven, for $5,000 against the estate. This note is secured by mortgage. On the back of this note is endorsed: “Received the interest on this note to September 22, 1890.” “Received the interest on this note to September 22, 1891.” “Received on the within note $600, September 29,1893.” “Received the interest on the within note up to September 22, 1893.” The sole question arises as to the competency of appellant as a witness to testify concerning the last two of these endorsements. Appellant contends that the last two endorsements are for the same thing, i. e., the payment, $600 being the payment of interest up to September 22, 1893. He contends that these endorsements were made by himself in the absence of Willett, and was by his own mistake placed there twice. The court below refused to permit appellant to testify in regard to either credit, and by the endorsement were held prima faoie jmyments on the note, only gave judgment for the balance after deducting the credits. From that judgment this appeal is prosecuted. Subsection 2 of section 606 of the Civil Code provides: “Subject to the provisions of subsection 7 of this section, no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done [356] or omitted to be done by, an infant under fourteen years of age, or one who is of unsound mind or dead when the testimony is offered to be given, except,” etc. We are of opinion that these credits endorsed upon the note must be held to be transactions with decedent, and concerning which appellant could not testify under the section of the Civil Code above. The mere fact that these endorsements may have been made by appellant himself, and are alleged to have been made in the absence of decedent, can not alter the case. These credits are prima fade evidence of the payments as against appellant and we do not understand how he could testify concerning their correctness without necessarily also testifying as to the actual payments by decedent. Judgment affirmed.