Strauss v. Hutson

Cook, J., delivered the opinion of the court. Appellant filed a bill for discovery against appellees, husband and wife. To this bill appellees filed separate demurrers, each assigning three grounds of demurrer, viz.: (1) That the bill prays for discovery not under oath. (2) The bill as to discovery is a fishing bill. (3) That the bill, in praying discovery by this defendant, endeavors to force him, contrary to law, to give evidence against his wife. Accompanying the demurrers, separate answers were filed by appellees, denying under oath all of the allegations of the bill, and particularity the allegations charging fraud. The hill alleges that, at the time of the filing of the bill, complainant therein was the owner of an enrolled judgment of three thousand, six hundred and fifty-one dollars and three cents against appellee F. H. Hutson; that F. H. Hutson, during the life of this judgment, had purchased with his own funds certain described land, but [641] had the deed thereto made to his wife,. K. S. Hutson, for the purpose and with the intent to hinder, delay, and defraud complainant, and the other creditors of the defendant F. H. Hutson, out of their just demands; that no consideration was paid by the said K. S. Hutson to the said grantor in the said conveyance for the said property; that the said premises are now held by the said K. S. Hutson in secret trust for the said F. H. Hut-son, with the private understanding or agreement that the same belongs to the wife, and shall inure to the benefit of the said F. H. Hutson; and that the said property ought in equity and in good conscience be held to be the property of the said F. H. Hutson, and be applied to the satisfaction of complainant’s judgment. The prayer of the bill is that the defendants be required to answer, plead, or demur to this bill, but not under oath, and that the defendants be required to set forth and discover the consideration for the purchase price of each piece of the property described in the bill, and that the defendants be required to set forth and discover the amount and value of all their property, interest, and effects whatsoever that either of them, separately or jointly, had in their possession, control, or expectancy upon their removal to Washingon county, Miss., at and prior to the time of the first purchase of real estate in said county in the name of the defendant K. S. Hutson, and from whom or how received, and with whom deposited, or by whom held, or in which they or either of them may claim to have had any interest, and that they and each of them be required to set forth and state the facts and circumstances attending the said conveyances aforesaid, the amount of money actually paid thereon, and by whom and how and where the funds with which to make said payments were derived, and the purposes of said conveyances. It seems that the chancellor sustained the demurrer upon the first ground thereof, to wit: “That the bill prays [642] for discovery not under oath.” It is contended by appellant that this court should confine its consideration to that particular ground upon which the chancellor by his decree declared that the bill was demurrable. It is the contention of appellees that the demurrer went to the whole bill, and no matter what reason may have been assigned by him for sustaining the demurrer, if any of the grounds of demurrer are well taken, the action of the chancellor should be affirmed. We are of opinion that the discovery prayed for by the bill is, in effect, an effort to compel the husband and wife to testify against each other. Under the common law husband and wife were incompetent to testify either for or against each other. This has been changed by the statute. Section 1916 of the Code of 1906. The statute does not permit either to testify against the other, except in “all controversies between them.” The law is now that husband and wife are only competent to testify, where one of them is a party to the suit, when he or she is introduced as a witness by the other. In the instant case the prayer of the bill asks that each be required to discover matters and things to be used as evidence against the other. It is said that what the one may discover cannot be used against the other, and this may be true; yet we think the policy of the law goes further, and renders the husband or wife incompetent to give evidence in any proceeding which may aid the opponent of the other in a lawsuit wherein both husband and wife are made parties. Leach v. Shelby, 58 Miss. 681. As far as the husband and wife being competent to testify against each other, the law remains as it was at common law, except in controversies between them. The policy of the law, which renders either of them incompetent to testify against the other is discussed in Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440. George O. J., in that ease quotes with approval Greenleaf on Evidence, as follows: “It is essential to the happiness [643] of social life, that the confidence subsisting between.the. husband and wife should be sacredly protected and cherished in its most unlimited extent; and to break down or impair the great principles which protect the sanctities of that relation would he to destroy the best solace of human existence.” Affirmed.