Highberger v. Stiffler

Bowie, C. J., delivered the opinion of this Court: This is an application to a Court of Equity by a grantor, against the heirs and representatives of her grantee, to va-. cate a deed upon tho ground of actual and constructive fraud. The hill alleges that, the appellee being a woman of extreme age, unable to read or write, and depending on her son, George Stiffier, for advice, assistance and direction in all matters of business, in which he was and had been for many years her exclusive agent, in the month of March or April 1849, was induced by fraudulent devices and pretences practiced by him, to convey to her son, in fee, a certain house and lot in Washington County, for the nominal consideration of six hundred and fifty dollars, whereas, in fact, no consideration was paid; which conveyance was not known to the complainant until after the death of George Stiffier, when certain proceedings were instituted to make partition of his real estate among his heirs at law, through which the complainant was first informed of the fraud and imposition practised upon her. All the material allegations of the hill (except the extreme age of the complainant) are put in issue by. the answers. Testimony was taken by each party under the commissions issued in the cause.

The defendants have filed exceptions to (he interrogatories of the complain ³⁵⁰ ant, on the ground that they are leading. To-the testimony of the witnesses Brashears, because they are interested in the cause. To so much of the testimony of Kuhn, Bra-shears,, Hammond and Hill, as professes to prove the condition of the complainant’s mind and the influence exerted, on her by George Stifflér, because-they give opinions without stating the facts on which those opinions are founded;- and the other facts to which they testify are irrelevant and inadmissible. But one of the interrogatories in the series of the complainant’s interrogatories-in-chief,- seems to us objectionable as leading, viz: the fourth, but the view, which we. take of the facts proved under other interrogatories, renders the objection unimportant on the general bearing of the case.

The testimony of Cook is excepted to as irrelevant, and inadmissible for other reasons. Exceptions are taken to the declarations of the complainant, as to the property belonging to her, and to the admissibility of Exhibit S.G. for the.purpose for which it was offered, “there being no exr hibit with the bill of complaint of a certified-copy of the deed.” It is unnecessary to notice all these specifically, those operating upon the evidence deemed material will.be commented on. The Messrs. Brashears being shown to be grand-children of the complainant, it is contended, that their testimony tending to set aside the deed for incapacity in the grantor, establishes facts which make them interested in the result of the cause.

This objection goes to their credibility, rather than their competency. Their interest is contingent, not certain. “To render the person called incompetent as a witness, he must have a legal interest, a direct and certain interest in the event of the suit, inclining him against the party objecting.” 1 Phil. on Ev., sec. 6. Reynolds, Adm’r of Paul, vs. Manning, et al., 15 Md. Rep., 510 . Messrs.

Kuhn and Cook were both subscribing witnesses to the deed sought to be vacated, and the justices of the ³⁵¹ peace before whom it purports to have been executed and acknowledged. It is certainly against the policy of the law, that justices of the peace should be permitted to contradict, as witnesses, what they are officially certified to as magistrates; to that extent they are incompetent as witnesses. Vide 18 Md. Rep., 318 . Beyond this, there is no rule of law which precludes them from testifying to facts which do not contradict their official certificates, although those facts may incidently operate on the legal effect of the instrument acknowledged before them.

For instance, they may testify to the age and health of the grantor, to the payment or non-payment of the consideration money, the reading or omission to read the instrument, or other collateral facts not conflicting with what they had certified. The rules of evidence which incapacitated attesting witnesses from impeaching instruments to which their signatures had given credit, have been relaxed and abandoned. 1 Phil. Ev. (Cow.

Phil. & Hill,) secs. 128, 129. Townshend vs. Townshend, 9 Gill, 506 . Such evidence however is to be received with much jealousy. . Neither Kuhn or Cook testifies to any fact contradicting their certificate.

Most of the testimony of the former relates to facts independent of, and having no connection in time or place with the execution of the deed. Their answers to the fifth general interrogatory refer to its execution, and detail the circumstances attending. From these it appears, the grantor was about eighty-nine years of age, that her son George brought her into the room and told her he wanted her to acknowledge the deed which Cook held in his band, and make her mark; that she came forward very feebly and made her mark and acknowledged the deed, and at the same lime Cook pulled out three or four notes (amounting in the aggregate to $1000.) “ Each of these had an assignment written on its back/^ to which the appellee' made her mark. The deed was not read or explained to the appellee, nor was any purchase ³⁵² money paid.

The deed was written at the request of Geo'rge. Another witness (Hill) says, he was' present at the execution of the instrument of writing from Sarah Stiffler to George. That the magistrate who drew the instrument would ask the old lady questions, and George would answer them.- She did not say anything. No part of the instrument, except the acknowledgment, was read to her.

No money was paid, and witness thought at the time that it was more George’s instrument than the old lady’s. Paul Hammond testifies, that George Stiffler told him he advised his mother to make her property over in order to relieve herself from difficulty. The idea was, that Jacob Grove had a judgment against her son, John Stiffler, which he expected to make out of John’s interest in her