Cooke v. Cooke

Grasón, J., delivered the opinion of the court. In a proceeding in the Orphans’ Court of Baltimore City, between the parties to this cause, four issues were framed and sent to the Superior Court of Baltimore City for trial; the first and second of which involved the inquiry, whether assets of Daniel Cooke had come into the possession of the defendant, the appellee in this cause, and if so, to what amount? and the third and'fourth,'whether the instrument of writing, marked ⁵⁵⁰ J. C., and filed with the appellant’s petition in the Orphans’ Court, was intended, by the parties thereto, to operate as a mortgage only, and if so, whether it had been paid? At the trial of the cause, several witnesses were examined, and exceptions were taken by the appellant to the rulings of the court below in refusing to admit as evidence certain declarations and statements of Daniel Cooke as to the balance of money that would be left for his mother and sister, after the *payment of his debts, and as to the business relations existing between himself and the appellee; to the ruling of the court that Israel Cooke, the appellee, was a competent witness, and permitting his evidence to go to the jury; and also to the rejection of the appellant’s prayers, and to the instructions which the court gave to the jury. The declarations of Daniel Cooke, which were sought to be given in evidence, were made long after the execution of the paper writing, marked J. C., by him, and were offered for the purpose of impeaching or giving to it an effect different from that plainly indicated by the words used therein, and they were, therefore, properly rejected by the court.

Powles v. Dilley, 9 Gill, 234 . It is true that, where a deed is impeached by a stranger to it, upon the ground of fraud, the declarations of the parties to it, made about the time of its execution, are admissible as part of the res gestae, for the purpose of explaining the intentions of the parties and the character of the instrument. To this extent only do the authorities cited by the counsel of the appellant go; but we know of no case which authorizes a party, or those, claiming under him, to give his declarations in evidence for the purpose of impeaching or varying his own deed. The Act of 1864, ch. 109, sec. 2, prohibits a party to a contract, or cause of action, from testifying where the other party is dead; and it was contended that the court below erred in permitting Israel Cooke to testify, Daniel Cooke, the other party to the paper writing, marked J. C., being dead.

This was not a suit upon that paper or contract, but it was a proceeding, instituted by the appellant, to ascertain whether the appellee had come into possession of assets of Daniel Cooke, and if so, to what amount, and to compel him to account for such as had come into his hands. Israel Cooke testified to hav ⁵⁵² ing advanced moneys to Daniel, but said nothing regarding the character of the instrument of writing above referred to, or of the intentions of the parties *thereto at the time of its execution. He was, therefore, a competent witness. The Act of 1868, ch. 116, cited by the counsel of the appellant, had not been passed at the time of the trial below, and of course could not apply to the case, even had it contained provisions prohibiting a party from testifying under such circumstances.

The' court below rejected the four prayers of the appellant, granted the appellee’s first prayer, with an amendment, and gave an instruction to the jury instead of that asked by the appellee’s second prayer; and to these rulings and instructions the third and last exception was taken. The first prayer of the appellant was withdrawn. There was proof to show that, at the time of Daniel Cooke’s, death, there was some property in the coach shop, carried on by him in his lifetime, which belonged to other parties at the time of his death, and was claimed by and delivered to them, either before