Snell v. Fewell

Cooper, C. J., delivered the opinion of the court. Gibbs and Trott were competent witnesses for the complainant. Neither of them is seeking to assert any claim or interest in the property in controversy, and it is not shown that at the time of the death of Snell they had any interest in the land which they have since transferred. The incompetency of witnesses resulting from interest in the result of the suit, or in the record as an instrument of evidence in other suits, has been entirely removed by law. Code, § 1599, But by § 1602 of the code it is declared that “ no person shall testify as a witness to establish his own claim of any amount for or against the estate of a deceased person, which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent.” This provision has been held to preclude any person from testifying to establish his own claim to any species of property left by the decedent, whether the same be real or personal property or a personal demand against the representative. Jacks v. Bridewell, 51 Miss. 881. But it must appear either that the witness is interested in the subject-matter or that he was so interested at the time of the death of the decedent. If on the facts developed in the trial it should appear that the “ interest ” claimed to have been transferred before the death of the decedent had in fact been transferred after the death, the testimony should be excluded, but where by the tes [660] timony of such witness or otherwise it is shown that the transfer was made before the death, the witness is competent. l'Greenleaf on Ev. 422, 424. . # • The bill in this- case is not sworn to, and an answer under oath is not waived, as might have been done by the complainant, which if done would have deprived it of its character as evidence, and it is insisted by counsel for appellant that the testimony of the complainant is not equivalent to that of one witness and corroborating circumstances, which is required by the rule that facts stated in a sworn answer, and responsive to the allegations of an unsworn bill, cannot be overturned by less than that quantity of proof. But the answer, though sworn to, states the facts “ on information and belief,” and not upon positive knowledge, and though statements so made raise an issue between the parties and put the com-plainantto proof, Carpenter v. Edwards, ante, page 595, it is not incumbent on him to establish the truth of his bill by two witnesses,- or one witness and corroborating circumstances. Toulme v. Clark, ante, page 471. A review of the evidence leads us to conclude that, though it is not of the most satisfactory character by reason of the great length of time which has passed since the occurrences related and the infirmity of human recollection, it is amply sufficient to raise a presumption of fact that proper conveyances were executed by the parties at the times of the several sales. There is nothing in the evidence inconsistent with such presumption'; on the contrary, all the circumstances and facts proved consist with it. That Gibbs, the purchaser from Snell, the father of the appellant, was entitled to a conveyance, having paid the purchase price, if he took any sort of writing from the vendor, will not be denied; that he received at the time-either a bond for title, contract to convey, or deed is; we think, fairly to be presumed from the facts stated by him. A great many years have passed since the sale to him. Snell, the vendor, was a visitor at the home of Trott, the purchaser from Gibbs,while he lived upon the land; he made no claim of title and said nothing indicating that he had any interest in it. The parties claiming under Gibbs, have been in the possession of the land for nearly [661] thirty years, and though this possession may not at all times have been of that character required to acquire title by adverse possession, it is a potent consideration in aid of the presumption of the execution of proper muniments of title. 1 Greenleaf on.Evidence 41; Best on Evidence 393. The decree is affirmed.