(After stating the case.) Several issues were prepared and submitted to the jury, all of which may be resolved into the simple inquiry — to whom was the deed made?
On the trial the depositions of the plaintiff, Elizabeth, and the defendant, Weatherly, were offered in evidence for the plaintiffs, and the rejection of portions of the testimony of the latter furnish the only exception we deem it necessary to notice. The excluded evidence is of the act of tlie witness himself in executing the deed, which His Honor deemed inadmissible as relating to a transaction between the witness and a deceased person under whom the defendant claims within the words of the proviso of C. C. P., § 343. The principle embodied in the proviso, as stated by PearsoN, O. J., in delivering the opinion in McCanless v. Reynolds, 74 N. C., 301, is, that “ unless both parties to a transaction can be heard on oath, a party to an action is not a competent witness in regard to the transaction.” It is not necessary, however, to inquire whether the fact proposed to be proved by Weatherly is a “ transaction ” within the meaning of the Code, as we put our decision upon a distinct and independa *257ent ground. The opposing parties in the action undertake not only to derive their conflicting claims to the land from the same source, but by virtue of one and the same act of conveyance.
The making the deed an essential element in the equity of each against the maker, must be and is conceded by both,, and the controversy is solely as to the person to whom the deed was made.
In the determination of -this issue the witness has no interest, and to him it is a matter of indifference to which of the contending parties the conveyance shall be made. He is ready and submits to obey the order of the court, and meanwhile as a naked trustee or depository holds the legal estate for the benefit of the successful litigant. In our view the witness does not sustain such relations towards the cause or the controversy that in the effective and concluding words of the proviso, his “examination or any judgment or determination in such action or proceeding can in any manner affect the interest of such witness, or the interest previously owned or represented by him,” a condition upon which the incompetency depends.
The sole issue the jury were to pass on is as to the identity of the bargainee in the deed, and the witness has no-present interest, nor had or represented any former interest, to be affected by its determination.
We are fully sensible of the difficulties from the long and involved sentences of the section, and the obscurity of its-language in putting upon it a reasonable and consistent-construction. But we must so interpret its words as to make-them subservient to the main purposes for which the enactment was made. In doing this we hold that the witness is not disabled to testify as proposed. In ruling out the evidence there is error, and there must be a new trial.
Error. Venire de novo.