Leach v. Shelby

Campbell, J., delivered the opinion of the court. ■The first assignment of error is not well taken. The return of service of process is strictly in accord with the statute on the subject. The second assignment of error cannot prevail. There was no motion to suppress the deposition, and no objection made to it in the court below, because of the absence of a commission, or because the deposition was taken ex parte. The minor appellant had a guardian ad litem properly appointed, whose duty it was to conduct his defence, and, as to the matters involved in this assignment of error, must be treated as an adult would be. The fourth assignment is without merit. Setting a cause for hearing is a mere matter of convenience in practice. It consists in stating the style of the case on the issue-docket, etc. The general docket is to show the names of the parties and date of filing each paper in the cause, and of the issuance and return of the process, and a reference to all orders in the cause. .Iu other words, the general docket is to contain an index to each step in the history of the case. The case is not to be docketed iu the issue-docket until it is ready for final hearing, . or on the demurrer of all the defendants. The general docket serves to preserve the history of the cause, from the first step in it through each successive step to its end. The issue-docket and the motion-docket are to show the matters to be heard by the chancellor, who does not undertake to dispose of the general docket, but of those matters set down by the clerk on the issue and motion dockets, respectively, which are the only dockets to be called. There is no calling of the general docket. It is to contain a note of reference to every order and step in the cause, serving as a complete index thereof, and all causes ordered by the court or either party to be “ set [687] down,” are to be so “set down” on the proper docket. A cause is ‘ ‘ set down ’ ’ when it is placed on the issue or motion docket. The court may remaud a cause to the rules, after which it does not belong to the issue or motion docket; but if the court hears the cause which has been “ set down,” the purpose of its being “set down” is accomplished, since the ■only object of ordering it to be “ set down” is to get a hearing and ■ disposition of it. It is not required that the record shall show an order to “set down” a cause. The statute makes it the duty of the clerk, at each term, to “ set down •all causes ordered by the court or either party to be set down.” This order is merely a means to the end. If the cause is set down and heard, it is wholly immaterial that no order for it appears. The third ground in the causes assigned for reversal is that Mrs. Leach, the wife of A. D. Leach, was not a competent witness in the case. The bill was exhibited to vacate conveyances by A. D. Leach. Two of them were to his children, and one to the lady who afterwards became, and is now, his wife. She and husband conveyed to J. D. Leach the land which Mr. Leach had before marriage conveyed to her. The conveyance by Mrs. and Mr. Leach was also sought to be vacated. ' Leach was made a party defendant by the bill, and the deposition of Mrs. Leach was taken by the complainant. A motion to suppress it was made. The record does not show the action of the court on the motion, but contains the deposition. We are not informed what view the chancellor took of this question, but we must determine whether it is admissible to consider the deposition of Mrs. Leach as part of the evidence. It is asserted by counsel on one side that Mr. and Mrs. Leach were improperly made parties, and have no interest in the suit, and, therefore, are to be considered as if not parties, on the question of the competency of Mrs. Leach as a witness. On the other side it is asserted that they are necessary parties, and, therefore, that the rule excluding the wife .as a witness against her husband must be applied. The case [688] of Gaylords v. Kelshaw, 1 Wall. 81, is relied on as supporting-the proposition that Mr. and Mrs. Leach were necessary parties. They were not necessary parties. Taylor v. Webb, 54 Miss. 36. In this case we carefully considered the case cited in 1 Wall., and repudiated the doctrine it announces on this-subject. We adhere to our own view. The complainant might have omitted to make Leach and wife, or either, parties,, and then there could have been no question as to their competency as witnesses; but as Leach is a party, he alone could introduce his wife as a witness. Code 1871, sect. 760 ; Byrd v. The State, 57 Miss. 243. She was not introduced by him¡ or his side, but her deposition was taken by his adversary to overthrow the defence in which he was engaged. She was-not a competent witness. This view renders necessary the determination whether, excluding the deposition of Mrs. Leach, there remains evidence sufficient to maintain the decree. - Mr. Leach testified that the consideration of the convejumc© by himself to Laura D. Rice was not $1,600, the consideration it recites, but a settlement on his wife before their marriage, in contemplation and in consideration of their intended marriage, which had been agreed on at the time of the conveyance : and as marriage is a valuable consideration, and there is no imputation of fraud on the part of Mrs. Leach in accepting--this convej’-ance before her marriage, it is claimed that she held the land beyond the reach of creditors, and could give it to J. D. Leach, who, because of the superiority of her right to-it as against the creditors of A. D. Leach, is entitled to hold it. This view is correct, and is decisive of this appeal, if it be-true that it is admissible to vary by parol the consideration-recited in the deed. It recites $1,600 as the consideration. The evidence is of another consideration, and counsel says-that cannot be shown. There are many cases and assertions-by writers which seem to support the objection to parol evidence to show a consideration different from that mentioned in a deed, but we consider the true rule to be that, in a case like this, it is admissible to repel an attack on a deed by evidence [689] aliunde, by like testimony. The deed is assailed for fraud. The charge is sought to be supported by evidence that while the deed purports to have been for $1,600, not a cent was paid or intended to be paid. It is competent to show that although the valuable consideration mentioned did not exist, another valuable consideration did exist, and, therefore, that the deed was not fraudulent or voluntary. The assailant of a conveyance for fraud may show the truth as to its consideration, whatever are its statements. He who is interested to uphold the conveyance is entitled to show the real consideration, in order to maintain it. Truth is the proper object of investigation, and both parties should stand on the same footing, and have equal opportunity to establish it. This just view is sustained by the authorities. Whart. on Ev., sect. 1046 et seq.; 2 Smith’s Ld. Cas. 752; Eppes v. Randolph, 2 Call, 103 (125) ; Tyler v. Carleton, 7 Me. 175 ; Cunningham v. Dwyer, 23 Md. 219 ; McCrea v. Purmort, 16 Wend. 460; McKinster v. Babcock, 26 N. Y. 378; Jack v. Dougherty, 3 Watts, 151; Hayden v. Mentzer, 10 Serg. & R. 329 ; Lewis v. Brewster, 57 Pa. St. 410 ; Harrison v. Castner, 11 Ohio St. 339 ; Wait v. Wait, 28 Vt. 350 ; Potter v. Everett, 7 Ired. Eq. 152; Miller v. Goodwin, 8 Gray, 542 ; Morse v. Shattuck, 4 N H. 229 ; Banks v. Brown, 2 Hill Ch. 558 ; Hair v. Little, 28 Ala. 236; Rhine v. Ellen, 36 Cal. 362 ; Gale v. Williamson, 8 Mee. & W. 405. It follows from these views that the decree must be reversed, and the cause be remanded to the Chancery Court, where the complainant may be allowed to dismiss as to Mr. and Mrs. Leach, when her testimony would be competent; and with her testimony as a proper part of the case as presented by this record, the decree made by the chancellor would be held to be correct.