There is no error in the charge. It was not calculated to mislead, but, on the contrary, directed .the minds of the jury to the very point on which the case turned, to-wit: Did the deed of Cox convey to the defendant more land than was embraced by the original contract of purchase at the price of $1,500, with an intent thereby to benefit said Cox, at the expense of his other creditors ? This was fairly left to the jury, and the verdict is in favor of the defendant.
We think there is error in permitting the defendant to testify as to conversations and transactions with Cox, who was dead at the time of the trial.
*3131. Is tlie plaintiff, wbo is a purchaser at sheriff’s sale, “an. assignee ” of Cox, within the meaning of sec. 343, C. C. P ? Any one who has acquired the rights of the dead man,, whether by his deed or by the deed of the sheriff, who is authorized to make a’ deed for him, is an assignee within the meaning of sec. 343. This is the general meaning of the word, and on the face of the statute no distinction is made between a voluntary and an involuntary assignee.
2. The position is taken: The object of the proviso is to protect dead men, and not to allow conversations and transactions Avith them to be proved by a party to the action, inasmuch as he is not here to explain the transaction or to justify his conduct in the transaction.
In this case the conduct of the dead man had been called in question by the plaintiff, and he is charged with fraud. So this opens the door, and lets in the defendant, although a party to the action, to explain the transaction, and explain and justify the conduct of the dead man in regard to the transaction. This is a new point upon the construction of sec. 343, and has much plausibility.
After consideration, we are of opinion his Honor erred in allowing the defendant to testify as to conversations and the transactions between himself and Cox. True, this testimony tended to exculpate Cox from the charge of fraud imputed to him by the plaintiff. The plaintiff does not become a witness in his own behalf, but relies on the testimony of third persons. The plaintiff does not assume to represent Cox, except as assignee of his right to the land, treating the deed to defendant as fraudulent; but takes the ground, suppose Cox was living, I could then put him upon his oath, whereas now, you let the defendant swear as to the transaction without fear of contradiction, because the man is dead.
“We are satisfied by the true construction of sec. 843, neither of the parties, whether claiming as original parties or as assignees either by deed of the party or deed of the sheriff, is a *314competent witness, in regard to conversations and transactipns between the party wbo offers himself as a witness and the as-signee of the dead man.
Allowing a party to an action to give evidence in his own behalf is a wide departure from the rules of evidence at common law, and the proviso in sec. 343, which fixes a limit to this departure should be construed liberally. The effect of it is to exclude one of the parties to a transaction, who is afterwards a party to an action, concerning the right or property involved in the transaction from the enabling clause of the statute, in the event of the death of the other party to the transaction. The proviso rests on the ground, not merely that the dead man cannot have. a fair showing, but upon the broader and more practical ground, that the other party to the action has no chance, even by the oath of a relevant witness to reply to the oath of the party to the action, if he be allowed to testify.
The principle is, unless both parties to a transaction can be heard on oath, a party to an action is not a competent witness in regard to the transaction.
There is error. Murphy v. Ray, 73 N. C. Rep. 588, is not well reported. The original papers show that the depositions of Buchanan and of his wife, who were the real parties in interest were read in evidence. This explains the opinion, and brings the case within the exception to the proviso of a very complicated statute, and distinguishes it from our case.
Per ' Curiam. Venire de novo.