Standford v. Davis

Miller, J., delivered the opinion of the Court. The record in this case shows that on the 14th of August, 1867, a mortgage of leasehold property was executed, (as appears on its face,) hy Thomas H. Standford, junior, to David Davis, to secure the sum of $1680 and interest. The mortgage is in the usual form, reciting an indebtedness for this sum, and that for this amount “ the said Standford has passed his promissory note unto said Davis bearing even date with this instrument and payable three years after date, and also three interest notes of like date, each for the sum of $90, and payable respectively in one, two and three years from date." In May, 1877, after the death of the mortgagee, his administrator procured the passage of a decree for the sale of the mortgaged property, in accordance with the assent clause contained in the mortgage. The property was sold, and the auditor stated an account distributing the proceeds in payment of costs, commissions and the expenses of the sale, and then applied the residue to the payment in part of the mortgage debt, leaving a balance of $151.60 still due thereon.

To the ratification of this account, Thomas H. Standford, Junior, filed exceptions, alleging in substance that the transaction was tainted with usury, and asked that the case he again referred to the auditor, with power to take testimony to sustain this objection, and the Court accordingly passed an order to that effect. On taking this testimony before the auditor, the except-ant proved by his father, Thomas H. Standford, Senior, 'certain facts' tending to sustain the charge of usury. It was supposed this witness was competent so to testify even as against the administrator of the deceased mortgagee, because he had been the mere agent of his son in negotiating the loan, and executing the notes to secure which the mortgage was given. But on cross-examination, he admitted that the signature to the note for the principal sum secured by the mortgage, as well as to the three origi ⁵²⁹ nal interest notes, toas his own, and the only question in the case is, was he, in view of this admission, a competent witness to prove the facts he offered to prove, the mortgagee and payee in the notes being dead ; and we are very clearly of opinion he is not so competent.

Our Evidence laws, as construed by this Court, provide that when one party to a contract or cause of action is dead, the other party shall not be allowed, on his own offer, to testify in respect thereto. He cannot by his own testimony establish a contract in his favor against a deceased party, nor can he by such testimony assail one upon which he is prima facie liable to the deceased. It is too plain for argument that the purpose as well as the effect of the testimony of this witness was to assail, in part at least, the consideration of the note for $1680, in favor of the deceased, which he admitted he signed as maker, and which on its face does not disclose any agency on his part. Upon the face of the note he is undoubtedly liable to the payee therein, and he cannot escape the liability by showing that he in fact signed it as