Opinion
(June Term, 1863.)
1. A person whose land has been sold at sheriff's sale is a competent witness, in an action of ejectment against the purchaser at such sale, to show that his own title was defective.
2. Any one who had an opportunity of knowing and observing a person whose sanity is impeached, though he may not be an attesting witness, may give his opinion of such a person's capacity to make a deed or will.
3. Where it is established that the deed offered by one of the parties in ejectment, claiming under the same person with the other, is void, he is not estopped from denying the title of the other party.
EJECTMENT, tried before Howard, J., at Fall Term, 1861, of HARNETT.
The plaintiff's declaration included three tracts or pieces of land. The lessors of the plaintiff showed by grant and deeds a good title to two of the tracts in one Hugh McDougald, the death of McDougald, and that they were his heirs at law. They also showed the possession of the defendant, at the time the declaration was served, of all three tracts, but offered no evidence of title as to the third tract.
The defendant then offered in evidence a deed from Hugh McDougald to one McPhail, a judgment, execution, levy, sale, etc., as the property of McPhail, and a sheriff's deed to himself. The deed of Hugh McDougald and the sale and deed of the sheriff covered all three tracts.
The plaintiff then offered evidence of Hugh McDougald's incapacity to make the deed. Among his witnesses, he tendered McPhail, to whom the deed was made. The defendant objected, but the objection was overruled, and defendant excepted.
One Atkins, was introduced as a witness. He stated that he had been deputy sheriff during the year in which the deed was made; that he knew McDougald, and did some business with him. The plaintiff proposed asking the witness "whether, in his opinion, McDougald was, during that year, competent to transact business or make a deed."
The defendant's counsel objected to the question, and insisted that Atkins, not being a witness to the deed, could only describe the (121) acts and sayings of McDougald, and was not, in law, allowed to express his opinion. The witness was permitted to give his opinion, which was that he did not think he had mind enough to protect himself. Defendant excepted.
The court charged the jury that as the defendant produced the deed from McDougald and claimed title from him through McPhail, he was estopped from denying his title, and, therefore, if they were satisfied that McDougald was not competent to make a deed at the time the deed purported to have been made, the plaintiff was entitled to recover not only the two tracts, but the third also. Defendant excepted.
Verdict and judgment for plaintiff. Appeal by defendant.
N. McKay for plaintiff.
W. B. Wright and Buxton for defendant.
The objections to the competency of testimony were untenable, and his Honor was right in so deciding.
1. McPhail was competent to testify for the plaintiff. His testimony was against his interest. In proving that the deed from McDougald to him was void on account of the incapacity of the grantor to make it, he showed that he was liable to the defendant, who was the purchaser of the land as his, under a sheriff's sale. See Rev. Code, ch. 45, sec. 27.
2. Clary v. Clary, 24 N.C. 78, has settled the rule that in the case of a deed as well as of a will any witness, though he may not be an attesting one, who has had opportunities of knowing and observing a person whose sanity is impeached may not only depose to the facts within his knowledge, but he may also give his opinion as to the sanity or insanity of such person.
Upon the question of estoppel, his Honor's opinion was wrong. If the deed from McDougald to McPhail was a nullity because of the grantor's insanity, we cannot see how it could estop the grantee or any person claiming under him. It certainly did not estop the grantor, and a primary rule in the doctrine of estoppels is that, to be of any (122) force, they must be mutual. Hence the defendant was not estopped to take advantage of the fact that the plaintiff's lessors could not show title to the third tract of land described in the plaintiff's declaration. It was error, then, in the court to instruct the jury that the lessors were entitled to recover that tract, and for the error thus committed the judgment must be reversed and a
PER CURIAM. Venire de novo.
Cited: Drake v. Howell, 133 N.C. 167; In re Peterson, 136 N.C. 29.