Christopher v. Wilkins

The opinion of the court was delivered by Pitney, J. The present appeal relates only to so much of the decree as dismisses the complainant’s bill for foreclosure. With respect — 357 — to this, the conclusions of the learned vice-chancellor are fully sustained by the evidence, liis remark, however, that “the endorsements made upon the bond by the mortgagee are not evidential” of the fact of payments of interest, is inaccurate, unless it was made with reference to the particular endorsements before him, rather than as an expression of a general rule of evidence. No copy of the endorsements has been laid before us, but from the other evidence in the case we understand that there were successive endorsements in the handwriting of Theodore L. Christopher, some of which were dated before the time when the bond and mortgage would have-been barred by the statute of limitations and some dated at later times. It was formerly held in England, and generally in this country, that memoranda or receipts endorsed by a creditor upon a bond or note, admitting payments of interest or part payments of principal, and appearing to have been fairly made contemporaneously with the receipt of money, were admissible in evidence, after the death of the party making them, to show partial payments by the debtor, and thereby to raise a new promise to pay the balance of the debt, so as to avoid the bar of the statute of limitations. But this was allowed only when the receipts either bore date at a time before the debt was barred, or were shown, by evidence aliunde, to have been made before the debt was barred. ' ■ They were then admitted on the ground that, when made, the memoranda were against the pecuniary interest of the persons making them. Wood Lim. § 115; Ang. Lim. §§ 241, 242; 1 Greenl. Evid. § 121; Higham v. Ridgway, 10 East 109; Sm. Lead. Cas. 1607, and cases cited in note to edition of 1888. Under this rule it is obvious that in some circumstances the endorsement or.memorandum alone might be deemed sufficient proof of payment so as to take the case out of the operation of the statute of limitations. In the year 1828 Lord Tenterden’s act (9 Geo. IV. c. 14) was passed, by section 3 of which it ivas enacted, in substance, that no endorsement or memorandum of any payment made or written upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment was made, — 358 — should be deemed sufficient proof of such payment so as to take the case out of the operation of the statute of limitations. The provisions of this act of parliament have been very generally adopted by statute in this country, and in the year 1874 were embodied in the revision of our act for the limitation of actions. Gen. Stat p. 1974. By the eleventh section of that revision it is enacted “That no endorsement or memorandum of any payment written or made, after this act shall go into effect, upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of this act.” The proper scope of this section is indicated by its plain language. It does not render such endorsements and memoranda inadmissible in evidence in cases where otherwise they would be admissible, but it prevents their being accepted as sufficient evidence in and of themselves to prove the payment, for the purpose of taking the ease out of the operation of the statute of limitations. Its effect is to require evidence of the payment in addition ta the endorsement, but not to exclude the endorsement from consideration as evidence if otherwise admissible. The distinction was evidently recognized by Mr. Justice Depue in delivering the opinion of the supreme court in Parker v. Butterworth, 17 Vr. 244, 247. The point just discussed was, of course, not involved in the case of Oberg v. Breen, 21 Vr. 145, where this court held that the books of account of a merchant are not evidence in his own favor, with respect to payments credited in them to his customer. In that case the merchant was living, the customer dead; and the decision was based on the inadmissibility of mercantile books for the purpose of proving payments of money. Upon the argument of the present appeal it was strongly insisted that the vice-chancellor erred in admitting the testimony of Lydia A. Wilkins, the mortgagor (she being a defendant in the suit) with respect to certain statements by and transactions with Theodore L. Christopher, whose personal representative was the complainant. The case shows that Mrs. Wilkins was called — 359 — as a witness in her own behalf before the complainant was called, and that on her examination she was asked to testify with respect to a transaction with Theodore L. Christopher, but, on objection by complainant’s counsel, she was prohibited from giving such evidence. Afterwards Mrs. Wilkins was recalled in behalf of the complainant, but she gave no evidence concerning any statement by or transaction with the deceased. Subsequently the complainant, being the representative of Theodore L. Christopher, was called in her own behalf in rebuttal, and, under examination by her counsel, testified that' she had seen her husband write in his lifetime and was familiar with his handwriting. Being shown the mortgage in suit, she was asked in whose handwriting were the receipts, and signatures attached to the receipts, appearing upon the mortgage. She replied that they were those of Theodore L. Christopher; that she had seen him sign one or two of those receipts; that she did not remember distinctly what date it was, but thought it was in 1894 or 1895. Thereafter Lydia A. Wilkins was recalled in behalf of the defendants and was permitted, against the objection of complainant’s counsel, to testify with regard to transactions with and statements by Theodore L. Christopher other than the supposed payments of interest upon the mortgage. These payments she at the same time denied. It is not necessary at this time to refer to sections 3 and 4 of the revised act concerning evidence, approved March 27th, 1874 (Gen. Stat. p. 1397), and the supplement, approved February 25th, 1880. P. L. of 1880 p. 52; Gen. Stat. p. 1407. The supplement of 1880, and its bearing upon the act of 1874, were fully discussed in this court in the case of McCartin v. McCartin, 18 Stew. Eq. 265, and a majority of the court adhered to the opinion expressed by Mr. Justice Van Syekel, who said: “My conclusion is that, if the representative offers himself as a witness, and testifies to any transaction with or statement by the testator or intestate, the other party may be a witness on his own behalf as to all transactions with or statements by such testator or intestate which are pertinent to his case. But if the representative offers himself on his own behalf and does not testify to any transaction with or statement by his .testator or intestate, the — 360 — other party is excluded from testifying with regard to any such transaction or statement.” . The several acts concerning evidence were again revised by the legislature of 1900, all previous statutes on the subject being, at the same time, repealed. Section 4 of this revision (P. L. of 1900 p. 363) is as follows: “In all civil actions any party thereto may be sworn and^ examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, this section shall not extend to permit testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator or intestate, in which event the other party may be a witness on his own behalf as to all transactions with or statements by such testator or intestate which are pertinent to the issue.” It will be observed that the legislature has'thus adopted the language of Mr. «Justice Van Syclcel in the McCartin Case almost in hcec verba. This language is so plain as to carry its own interpretation. In the case at hand, the administratrix having offered herself as a witness in her own behalf, and testified in her own behalf to transactions with her intestate, to wit, that she had seen him write and had seen him sign certain of the receipts for interest appearing upon the mortgage in suit, the other party (Mrs. Wilkins) thereupon became a competent witness in her own behalf as to all transactions with or statements by the intestate which were pertinent to the issue. In order to qualify the non-representative party to testify concerning transactions between such party and the person deceased, or concerning statements made by the person deceased in the hearing of the non-representative_ party, it is sufficient that the representative party shall have first testified to any transaction with or statement by the deceased. It is not necessary that the testimony of the representative party shall have related to a transaction between the iron-representative party and the person deceased, or to a statement made by the person deceased in the presence of the non-representative party. Nor is the testimony of the non-rep — 361 — xesentative party to be limited to those transactions and statements concerning ■ which the representative party has testified. Testimony by the representative party concerning any transaction with or statement by the deceased, although the deceased and the representative party thus testifying may have been the only parties .to the transaction mentioned, and although the statement by the deceased may have been heard only by the representative party, is sufficient to qualify the non-representative party to testify concerning all transactions with and statements by the person deceased which are pertinent to the issue. The testimony of Lydia Ann Wilkins concerning transactions with and statements by Theodore L. Christopher, given after the examination of Mrs. Christopher, the administratrix, was therefore properly admitted and considered by the learned vice-chancellor. The decree, so far as appealed from, should be affirmed. For affirmance—The Chief-Justice, Van Syckel, Dixon, Garrison, Collins, Eort, Garretson, Hendrickson, Pitney, Krueger, Adams, Vredenburgh, Voorhees, Vroom—14. For reversal—None.