Farmers' Bank of Fairmont v. Gould

Dent, Judge :

John E. Gould appeals from a decree of tbe Circuit Court of Marion county rendered on tbe 13th day of December, 1892, against him, in favor of the Farmers’ Bank of Fairmont, and relies on the following assignment of errors, to wit: First. The court erred in excluding the, testimony of John E. Gould, defendant. Second. The court should not have set aside the deed for the brick house and parcels of lot No. 49 in the town of Fairmont, executed by Jacob N. Gould to John E. Gould, bearing date on the 13th day of August, 1887, and should not have made the judgment of thirty thousand dollars a lien or charge upon said land. Third. The court should not have decreed the sale of said laud without having first ascertained and fixed the amount of debts of said decedent Jacob N. Gould’s estate and the liens on said land, and their priorities. Fourth. The court should not have decreed tbe sale of said land without having referred the cause to a commissioner in chancery to ascertain and report what personal property, if any of decedent’s estate, there is or was subject to, the payment of the judgment, and then having exhausted any such personalty in discharge of decedent’s debts. Fifth. Because the decree is not warranted by the evidence, but is contrary to the law and the evidence.”

The third and fourth assignments are answered by the case of Core v. Cunningham, 27 W. Va. 206 , followed in the case of State v. Bowen, 38 W. Va. 91 ( 18 S. E. 375 ). The first assignment relates to the exclusion of the evidence of John E. Gould, the alleged fraudulent grantee, for the reason that the alleged fraudulent grantor was dead.

The object of the suit was to set aside, as fraudulent and void, a deed executed by Jacob N. Gould to John E. Gould on the 13th day of August, 1887, in so far as plaintiíf’s *135 judgment for the sum of thirty thousand dollars, bearing date 12th day of August, 1891, against Jacob N. Gould, was concerned. On the 1st day of January, 1892, Jacob N. Gould died, and this suitwasiustitutedthe2d day of March, 1892; and on the 13th day of December, 1894, the circuit court, in entering final decree, among other things, held “that said John E. Gould is not a competent witness to testify in this cause, in his own behalf, in regard to any transaction or communication between himself and said Jacob N. Gould, deceased, in relation to the deeds and property and transactions in controversy in this suit, tfie said Jacob N. Gould being dead, and his deposition not being taken in relation thereto; and the court sustained said exceptions to said John E. Gould’s deposition, to this extent.”

Code, c. 130, s. 23, provides that “no person offered as a witness in any civil action, suit or proceeding shall be excluded by reason of his interest in the event of the action, suit or proceeding or because he is party thereto.” It also provides that “no party to any action, suit or proceeding, nor any person involved in the event thereof, nor any person from, through or under whom any such party or interested person derives any title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, uext of kin, as-signee, legatee, devisee, survivor, etc., shall be examined.” The question here involved is whether the evidence of John E. Gould was properly' excluded, under the latter section. Was he testifying against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of Jacob N. Gould? If not, he was competent. Counsel, in argument, virtually admit that creditors are not included in the wording of the statute, but claims that John E* *136 Gould was testifying adversely to the interest of the estate of Jacob N. Gould, and therefore incompetent. That is to say, if the latter had been living he would have testified against the bonajides of the transaction, and because he is prevented from so doing, by death, his grantee should not be allowed to testify in favor of the same. This is contrary to the presumption that every person will testify in favor of the good faith of his own conduct, unless the contrary is shown. Plaintiff and John E. Gould are claiming adversely to each other. One of them must be claiming adversely to Jacob N. Gould. It can not be John E. Gould, for the reason that he is claiming under his deed, and in privity with him; and it is to the interest of both to repel the charge of fraud, and sustain the bonajides of their transactions. Their interests are mutual, and not adverse. If Jacob N. Gould were living, presumptively at least, he would not have testified in opposition to the statements of John E. Gould, but to have sustained them. Hence, according to the plaintiff’s theory, having postponed the bringing of suit until rid of one hostile witness, it thereby closes the mouth of the other. By its laches it has gained, instead of lost, not once, but double. This is not equitable, nor in accord with the former decisions of this Court. Gilmer v. Baker, 24 W. Va. 83 ; Hobbs v. McLean, 117 U. S. 569 (6 Sup. Ct. 870); Zane v. Fink, 18 W. Va. 693 ; Anderson v. Cranmer, 11 W. Va. 575 . We must therefore conclude that the court erred in sustaining the exceptions to the evidence of John E. Gould, as he was and is a competent witness to sustain his own title, and the good faith of the transactions between himself and his deceased brother, as he is in no sense testifying against the interests of one deceased. The Farmers’ Bank of Fairmont is still alive, so far as this suit is concerned.

The question then is, what shall be done with this case ? This evidence is material. It was proper for the consideration of the court, and was excluded. Had the error not been committed, the decree -might have been otherwise than it is. Before passing on the case, the court took good care to sustain the exceptions, thereby showing that the evidence, if in, was entitled to weight, in the consideration of *137 the court, sufficient to have changed the result. Had the court simply disregarded the evidence, this Court would have held that it considered the evidence sufficient, with or without that excluded, and would end the case on its merits. But as was said in the ease of Armstrong v. Town of Grafton, 23 W. Va. 56 : “This is a court of appellate, not original jurisdiction. Our duty is to review the decisions of the circuit court. It is not proper for us to render a decision on a case which has never been considered or decided by the circuit court.” If we were able to say that, notwithstanding the admission of the evidence, the circuit court would have entered the same decree, we might dispose of the ease at once; but, presumably, it would not have done so, otherwise it would have allowed the evidence to remain in. Before our jurisdiction attaches, the circuit court must have the opportunity to enter such decree as the law and the evidence justify, and therefore the decree will have to be reversed, the exceptions to the depositions of John E. Gould overruled, and the case be remanded to the circuit court to be further heard and proceeded in according to the rules of equity.

BeaNNON, Judge, absent.