*110The opinion of the Court was drawn up by
Shepley J.A rehearing was granted in this case upon the petition of the defendant, it appearing that he had been prevented from exhibiting the whole of his testimony. As now exhibited, the testimony is overloaded and incumbered with a mass which is illegal and irrelative; and if those taking testimony in equity cases cannot refrain from such a course, it will become necessary to change the rule and require the testimony to be taken by interrogatories in their absence. It would occasion a prolonged discussion, and one of very little value, to separate the legal from the illegal testimony, and give-the reasons for it. The legal testimony only will be regarded.
The allegations of the bill are fully proved by the testimony of Penniman and of John Pillsbury and his wife. And if their testimony be competent and credible, the defendant must have obtained the title by a deliberate fraud, and cannot retain it. However strange it may appear, that he should have caused the deed to be fraudulently made to himself, knowing that it would be exhibited to John and Joseph before payment was made; yet if this testimony is to be relied upon, he must from his knowledge of their careless habits, or their confidence in Wellman, or from a combination of these and other causes, have expected, that he should be successful, or that if not, the attempt would be attended by little danger.
Is the credit of Penniman materially impaired by the opposing testimony ? Daniel Cowing says in substance, that he was present when the money was paid, and. that when John had counted out $200, he handed it to Samuel to count over, and which handed it to Penniman he cannot say, and he went directly out; that John took the deed in his hand and said he did not know, but that the deed ought to have been made in his name, as he had paid most of the money ; that the land was not worth over $ 100, and Samuel had given too much for it; and that when a store was about to be moved on to the land, Samuel forbid Joseph to put it on, and John said the land belonged to Samnel, and that he let or loaned him the money to pay for it. There is nothing in these statements in direct conflict with the testimony of Penniman, and yet it would be expected, that he should recollect something of *111them, if they did lake place. Are they in themselves probable and credible, being in accordance with what would have been expected from the allegations of either party respecting the transaction ? They are introduced because they are not to be reconciled with the plaintiff’s account of it. And if Samuel was the real purchaser, and was receiving a debt or borrowing money of John and Joseph, why should John take and examine the deed, and say that it ought to be in his name because he had paid most of the money, and do this when it is not pretended, that he paid more than half the money ? And why should John hesitate about paying the money, and say it was not worth more than a 00, if he had ho interest in it ? Cowing does not profess to have been present during the whole of the transaction, and these considerations, combined with the time and manner of first introducing the testimony, prevent its affecting materially the credit of Penniman. Rice Rowell states the opinion expressed by Penniman respecting the title to the land, but it does not appear that he made any contradictory statement respecting the facts. Oliver White says he told him, that he had deeded the lot to Samuel, and he supposed the Pillshurys had bought it together. James Croclcett says he understood him to say that he had sold the land to Samuel. Having made the deed to Samuel, he might speak of it as sold to him, or he might have said as he did to White, that he deeded it, instead of feold it, and Croclcett not remember the word used. This is the substance of their testimony; and it is little, if at all inconsistent with Penniman’s own account of the business, and the combined effect of ail the opposing testimony does not materially injure his credit.
Is John Pillsbury a competent witness ? Whatever interest he acquired in the property by the assignment has been released. The partnership formerly existing between him and Joseph was dissolved several years ago; and John released his interest in this land and the other partnership properly to Joseph, who bound himself to pay all the debts. One remains unpaid. John is equally liable to pay that debt, whether Joseph prevails in this case or not. Joseph may be more able to pay it, if he succeeds, and more able to pay John if he is obliged to pay it; but that does not prove such an interest in John as to exclude him. The creditor may be a *112witness in a cause when a recovery will increase the property of his debtor. The land cannot be levied upon as the estate of the partners, for they never had any legal title to it. The interest is too remote and contingent to exclude him.
The defendant introduces the testimony of Dunning, Cowing, Derry and Dudley, to impair or destroy his credit. The substance of their testimony may be briefly stated. Dunning says, that John told him that Samuel owned the land, that he let him have the money to pay for it, and was to get it back by means of a debt, which the firm owed him. Cowing’s has been already stated. Derry says, that John admitted, that tSbmweipaid $75 towards the land, and that he came to him at his vessel to get some money to pay for it, -and he let him have it; and he speaks of the same conversation related by Dunning. Dudley says, that he said Joseph should not complain of Samuel for forbidding him to dig a cellar on it for he “ calculated the land belonged to Samuel,” and yet he says, “ he did not say whether the land belonged to Samuel or not.” The testimony of these witnesses might be considered as substantially overthrowing the testimony of John, if their own credibility was not impaired by their manner of testifying as it is exhibited in their depositions. The statement respecting Samuel’s going to the vessel after the.money, is inconsistent with any account of what actually took place. There are other facts and circumstances in the case clearly proved, sufficient to corroborate the testimony of John and render it credible.
The bill charges that Samuel obtained the deed from the wife of John, in his absence, by falsely and fraudulently representing to her, that her husband wished him to get it, and have it recorded. To such a charge he was specially called upon by every consideration affecting his character, to give a definite and direct answer.
The only answer to this, except the general denial of all matters is, that by accident he left the deed on the desk, was informed that John had carried it home, and supposing it would be safe be suffered it to remain till he wished to record it, and then called at the house of John and took it. The probability, that he should not ask for the deed under such circumstances for several months, as well as the rest of the statement, is not great; and the allegations of the bill on this point are not met by the answer; and *113are clearly proved by the testimony of the wife. Her testimony is not attempted to be impaired ; and if true, as it must be taken to be, it strongly corroborates and fortifies that of her husband ; for it is inconceivable, that one should so conduct, who had a fair and good title to both the deed and the land conveyed by it; while it might be expected from him, if John’s testimony be true. Another fact of importance is, that Joseph has always remained in possession, and has taken the rents without any claim upon him, or interference, by Samuel, except the forbidding to dig the cellar. The want of proof of any debt due from the firm to Samuel, and of any receipt or note given for the money, alleged to have been obtained by him, impairs one’s confidence in the statement, that it was so received, and tends to confirm the statements made by John and Penniman; and their testimony, taken in connexion with these circumstances, is sufficient to prove the material allegations of the bill. And if John’s testimony be laid out of the case, there is sufficient remaining upon equitable principles to destroy all confidence in the answer.
The former decree is affirmed with costs.