Honeycutt v. Burleson, 198 N.C. 37 (1929)

Dec. 4, 1929 · Supreme Court of North Carolina

198 N.C. 37

G. FRANK HONEYCUTT v. L. N. BURLESON and C. L. SPEARS, Executors of R. B. HARTWICK.

(Filed 4 December, 1929.)

1. Evidence D b — C. S., 1795 applies to persons interested in event whether parties or not.

The provisions of C. S., 1795, excluding testimony of transactions and communications with a deceased person by a party in interest, are not confined to the parties to the action, but extend to testimony of a witness interested in the result of the action.

2. Same — Inchoate right of dower is interest in event within purview of C. S., 1795.

The interest which a married woman has in the real property of her husband before and during coverture comes within the intent and meaning of C. S., 1795, and will exclude testimony by her of a communication or transaction between her husband and a deceased person as to a contract made between them whereby a mortgage on the lands of her husband executed prior to his marriage was to be canceled by the deceased.

Appeal by defendants from Stacie, J., at August Term, 1929, of CABARRUS.

On 31 March, 1923, tbe plaintiff mortgaged a tract of land to E. B. Hartwick, testator of tbe defendants, to secure $1,900, due 31 March, 1924. Tbe title was encumbered by a prior mortgage in tbe sum of $2,800. Tbe plaintiff made certain payments on bis mortgage, tbe last on or about 19 January, 1924. He alleges that in tbe summer of 1925 a contract was made by him and tbe defendants’ testator, by which tbe testator agreed to remit tbe remainder due on bis mortgage, except tbe interest due in tbe fall of 1925, and to cancel tbe papers if tbe plaintiff and bis wife would look after, nurse, and care for tbe testator during bis natural life and see tbat be was not committed to a hospital or to tbe county borne; and tbat tbe plaintiff bas in all respects performed bis part of tbe contract. Tbe action was brought to restrain a sale of tbe. land under tbe terms of tbe mortgage. Tbe material allegations of tbe complaint were denied and tbe following verdict was returned:

1. Did tbe testator, R. Baxter Hartwick, in 1925, contract and agree with tbe plaintiff, G-. Frank Honeycutt, tbat be would give tbe plaintiff tbe balance due by him to tbe said Hartwick on a note and mortgage for $1,900 if tbe plaintiff’s wife would look after, nurse, and see tbat said Hartwick was cared for during bis life, and never allow him to go to tbe hospital or to tbe county borne, as alleged in tbe complaint? Answer: Yes.

2. If so, did tbe plaintiff perform bis part of said agreement? Answer: Yes.

Judgment for plaintiff; appeal by defendants.

Haris ell & HartseU for plaintiff.

H. S. Williams .and Palmer & Blaclauelder for defendants.

Adams, J.

Tbe plaintiff’s wife was permitted to testify concerning the execution and tbe terms of tbe alleged contract between tbe plaintiff and tbe testator of tbe defendants, who was tbe mortgagee. An exception of the appellants contests tbe competency of her testimony on these points.

Upon tbe trial of an action a party or a, person interested in tbe event shall not be examined as a witness in bis own behalf or interest against tbe executor, administrator, or survivor of a deceased person concerning a personal transaction or communication between tbe witness and tbe deceased, except in-certain instances which are not material in this case. C. S., 1795. Tbe two immediate questions are whether tbe plaintiff was interested in tbe event of tbe action and whether she testified in her own behalf or interest to a personal transaction with tbe deceased mortgagee. That she testified to a personal transaction is beyond controversy.

A married woman upon tbe death of her husband intestate, or she shall dissent from bis will, shall be entitled to an estate for her life in one-tbird in value of all tbe lands, tenements, and hereditaments whereof her husband was seized and possessed at any time during coverture, and in like manner to such an estate in all legal rights of redemption, equities of redemption, or other equitable estates in land whereof her husband was seized in fee at any time during tbe coverture, subject to all valid encumbrances existing before tbe coverture or made during tbe coverture with her free consent lawfully appearing. C. S., 4100.

Tbe plaintiff was not married at tbe time be executed tbe mortgage to E. B. Hartwick; tbe mortgagee, therefore, beld tbe legal title to tbe mortgaged land subject to tbe right of redemption. Lewis v. Nunn, 180 N. C., 159; Hogan v. Utter, 175 N. C., 332; Lumber Co. v. Hudson, 153 N. C., 96. Upon her marriage bis wife became dowable of an equity of redemption in tbe mortgaged property. If tbe land had been sold and tbe purchase price bad not exceeded tbe debt there would have been no proceeds subject to her claim; if there bad been an excess tbe value of her interest would have been much less than if tbe mortgage bad been canceled, for in tbe latter event she would be dowable of tbe entire unencumbered tract. Tbe cancellation of tbe mortgage was a matter in which she bad a direct pecuniary interest. Section 1795 applies, not only to a party, but to any person having a pecuniary or legal interest in tbe event of tbe action. Jones v. Emory, 115 N. C., 158. Upon this principle it was beld in Linebarger v. Linebarger, 143 N. C., 229, that upon an issue of d&vJsa\oit v'él non tbe wife of a caveator, who was also an heir at law of tbe testator, was prohibited from testifying to declarations of tbe testator tending to show undue influence. If her husband bad acquired an interest in tbe land tbe wife would at once have been entitled to an inchoate right of dower. In Helsabeck v. Doub, 167 N. C., 205, tbe wife’s testimony was beld to be competent for the reason that if her husband recovered tbe value of bis services to tbe deceased she would have no right growing out of tbe marriage relation which would attach to tbe money recovered. Indeed, tbe distinction between tbe two is pointed out in tbe latter case.

Tbe wife’s testimony concerning a personal transaction with tbe testator should have been excluded, and its admission entitles tbe defendants to a

New trial.