delivered the opinion of the court, November 8th 1875.
The jury were properly instructed that the acceptance by Henry McLallen of the first deed executed by Buckley for the land in controversy, was not, in view of the facts which she alleged, conclusive against the defendant below. It had been agreed that the deed should be made to McLallen and his wife, and it was made to him alone. He accepted it, but there was evidence that he could not read. When Mrs. McLallen discovered that she was not named in it as grantee, she refused to receive it, and declared that she would not advance the purchase-money for the payment of which, as part of the contract, she had stipulated. It was destroyed by the common consent of the parties, and a new deed to the defendant and her husband was prepared and delivered. There was nothing in the relations of the parties, and nothing in the subject-matter of the contract, to stand in the way of the agreement which was made to substitute the second conveyance for the first. Indeed, upon the facts found by the jury, it would have been a fraud upon the plaintiff if the purchase-money had been obtained from her upon the delivery of the first deed to her husband. The instruc*403tions of tbe court in tbe general charge and the answers to the points were entirely unobjectionable.
But the admission of the defendant’s testimony was an error that is fatal to this judgment. The very subject of the controversy was the land which had been conveyed jointly to her husband and herself. She was asserting title to it in a suit with her husband’s representatives. And her testimony was in relation to circumstances which occurred at the very time when the joint title was acquired. Inseparable as her interest was from that of her husband in his lifetime, it became adverse to that of his heirs when upon his death they set up a claim to the property! An inquiry into the transactions that resulted in the conveyance by Buckley to Mr. and Mrs. McLallen was necessary in order to ascertain the relation to the title which each of the parties bore. To permit the defendant to testify to those transactions was to create the inequality against which Karns v. Tanner, 16 P. F. Smith 297, proves it was the object of the proviso to the 1st section of the Act of the 15th of April 1869, to guard. The question here is not distinguishable from that which arose in Karns v. Tanner. The death of her husband sealed the defendant’s lips, for she became at once, as to the plaintiffs, the surviving party to a transaction out of which the adversary claims involved in this litigation have grown.
Judgment reversed, and 'venire facias de novo awarded.