The opinion of the court was delivered by
Barrett, J.Four questions are raised in this case :
1st. Was it the duty of the court to direct a verdict for the plaintiff on the facts conceded touching the defendant’s knowledge as to the receipt which his daughter, Mrs. Tillotson, gave for the note in question ?
The only fact conceded by the defendant bearing on this point is, *205“ that, when he saw the receipt, Emily had both the note and the receipt, and showed him .both, but Emily told him Joseph had given her the note.” He did not concede that he was aware, or had reason to suppose, or did suppose, that Emily sent said receipt to Mr. Stevens, Joseph’s depositary ; and there was no evidence except circumstances on this subject. Standing upon this state of facts exclusively, it would seem unwarrantable to assume, as matter of law, that the defendant was put on enquiry, so as to be chargeable with bad faith, in taking the note under the circumstances, and upon the transaction disclosed in the bill of exceptions ; and that the most that the court could properly be called on to do, was, to leave to the jury the question of good faith as affected by said receipt, and the defendant’s knowledge of it, in connection with the other evidence that bore upon the question. But, if he had put himself on enquiry, prompted by the knowledge he had of the existence of said receipt, what does the case show that he would have found out? Plainly, that the intestate gave Emily the note under the circumstances and terms which the defendant’s evidence tended to show. And if it was so given, we think, notwithstanding the ruling of the county court to the contrary, that the title vested in Emily absolutely on the death of the intestate. If so, the plaintiff would not be entitled to raise any question as to good faith on the part of the defendant. Hence, in the judgment of this court, it would have been error if the county court had complied with said request.
The second question may be readily disposed of by recurring to the point as it is presented in the bill of exceptions.
The court, having refused to comply with the request above considered, proceeded to charge t¡je jury on the subject of good faith, which was to be considered by them in view 0/ all the evidence that had a legitimate bearing upon it. Exception is not taken to the matter of this part of the charge, but only, so far as the charge differed from said first request. ■ As we think that that request was not warranted by the law, it follows, of course, that the fact, that the charge differed from it, does not constitute error. It ought to differ from it, or else it would be erroneous. The exceptions, as drawn, preclude the idea of error in what the court told the jury, provided the first request was properly denied.
*206The third question'is made under the second request; and it seems to us that it may be settled on undisputed rules of law. The exceptions do not state that all, or any of the money, except that procured of Stanton, was advanced by the defendant after the death of the intestate ; but perhaps this may be inferred, and we so treat it. But this request concedes that the defendant held the note by valid title as security for the money procured of Stanton, and that he so held it at the time the plaintiff demanded it of him ; and nothing is shown that he does not still hold it by the same valid title. Wherefore, before the plaintiff could successfully assert a right in himself to withdraw it from the defendant, and disentitle him longer to hold it, it was incumbent on the plaintiff to pay, or offer to pay, to the defendant, the amount for which he was lawfully holding the note as security. Till this had been done, he could properly refuse to deliver up the note upon the plaintiff’s demand, and could not be charged with a wrongful conversion for so doing. This touches the right of action, and in this suit is conclusive against the plaintiff.
The fourth question is as to the competency of Mrs. Tillotsoñ as a witness for the defendant. In order to appreciate the question, it is important to note particularly'iri what relation to the case it arises. By the ruling of the court the defendant was excluded from defence on the score of title in Mrs. T. This ground of defence alone involved any question of contract with the witness to which the plaintiff’s intestate was a party. The only defence allowed to the defendant rested on the ground of good faith as the holder of the note under a valid contract between himself and the witness. The court assumed that the witness had no title to the note, upon the facts claimed and shown.-.by the defendant, as well as by the plaintiff. That shut out all que^ion of contract to which the intestate was a party, and left the case standing for defence solely on the ground of the contract between the defendant and the witness. Both parties to that contract were living. The cause of action was the conversion of a note, which was the property of the plaintiff’s intestate. The plaintiff proved .title by showing the existence of the note as a valid one, and Mrs. Tillotson’s receipt for it, and his right against the defendant, by showing the note in his hands, and his refusal to deliver jt to the plaintiff on proper demand. When the defendant proposed *207to show a transaction between the intestate and Mrs. Tillotson by which the intestate had parted with his title to, and property in the note, the court ruled that the title was still in the intestate and his administrator, notwithstanding that transaction. Thus, the defendant was left to stand exclusively upon his transaction with Mrs. Tillotson, who was the bearer of the note, without title to, or property in it. It was this transaction alone that touched the issue either as to cause of action or contract involved in the trial; and to this, as before said, the intestate was not a party. It, therefore, seems entirely palpable that Mrs. Tillotson does not fall within either the terms or intent of the statute excluding, as a witness, a living party to the cause of action or contract in issue where the other party is dead.
As no error is discoverable upon the points presented by the exceptions, the judgment of the county court is affirmed.