concurring in result. G. A. McGowan and wife L. A. McGowan, October 6, 18 9 Y, executed a deed in trust to J. R. Davenport upon the land in question, the property of L. A. McGowan, to secure certain indebtedness therein recited to be owing by G. A. McGowan and L. A. McGowan, among them this indebtedness to the plaintiff by open account for $156.60 for borrowed money, as stated in said deed and trust. G. A. McGowan has died and all the other indebtedness secured in the trust deed has been paid. This is an action alleging non-payment of this debt, that the trustee has refused to foreclose the said trust but has cancelled the deed in trust on the margin of the registration thereof, and asks for a judgment against L. A. McGowan and to set aside the attempted cancellation, and for foreclosure and payment of the debt out of the proceeds. The jury having found that the indebtedness was owing by G. A. McGowan and that it had not been paid, the Court gave no personal judgment against L. A. McGowan, but ordered a foreclosure of the trust deed and payment of the sum therein secured to the plaintiff out of the proceeds of sale.
It is well said in the opinion of Mr. Justice Walicer, “the question must be decided according to the law and without *535regard to any principle of fairness,” or as Judge Daniel said, long ago, “We can not be wiser than tbe law.” Tbe law is explicit. It provides, Tbe Code, section 589, “No person offered as a witness, shall be excluded by reason of bis interest in the event of the actionSection 590, excludes a party, etc., to tbe action, in bis own bebalf, etc., only when testifying as to a personal transaction with a person deceased, and then only “against tbe personal representative of tbe deceased person” or against tbe person succeeding to tbe title of tbe deceased.
Here tbe personal representative of the deceased is not a party to tbe action nor does tbe defendant succeed to bis title. Q. B. D. Tbe deceased never bad any title to be conveyed. Had be survived bis wife be might have been tenant by tbe curtesy if she bad not devised tbe property away. It was barely a possibility, certainly not a vested interest. Tbe deceased was expressly inhibited by tbe Constitution from having ex jure mariti any interest in tbe property of bis wife, which “shall be and remain tbe sole and separate estate and property of such female * * * as if she were unmarried.” The joinder of tbe husband was not to convey bis title and estate, for be bad none, but was merely tbe “written assent” required to authorize tbe wife’s conveyance. In Bryant v. Morris it is stated that tbe Court read into tbe statute what was not there, for it says that it was “not within tbe letter” of tbe law. Accordingly that opinion has been distinguished and never cited and affirmed as a precedent, and tbe law for tbe last twenty-six years has been uniformly held in accordance with tbe plain letter of the statute. Shields v. Smith, 79 N. C., 517, affirmed since in Ledbetter v. Graham, 122 N. C., 754, which is “on all-fours” with this case, and Bunn v. Todd, 107 N. C., 266, which last analyses the statute and points out that no person is disqualified unless be is a party to tbe action, and then *536only as to a personal transaction with the deceased, and in suck eases only when the other party is a personal representative of the deceased or holds his title — neither of which is the case here. Shields v. Smith, 79 N. C., 517, is also cited with approval on this point in Morgan v. Bunting, 86 N. C., at p. 69, citing several cases; Gidney v. Moore, 86 N. C., at p. 491, also citing numerous cases. Hawkins v. Carpenter, 85 N. C., 484. No point in section 590 has been better settled. Morris v. Bryant was a decision, made when the Code was new, and which stated therein that it was contrary “to the letter of the law.” As above stated, it has not been directly affirmed since in any case, but has been disregarded and effectually overruled by above decisions.
If, however, the express provision of the law is not to govern us, but our own conceptions of fairness, we must remember that the defendant L. A. McGowan testified at length as to the whole matter and there is no provision of law disqualifying her. The burden was upon her to prove payment, and it would be manifestly unfair were she to be competent and the plaintiff incompetent against her, the real defendant, and against Davenport, her co-defendant, when the plaintiff is seeking no relief against the estate of the deceased, and the estate is not a party to the action.
What effect the judgment may have against the estate of the deceased in any future action against it by the defendant is not before us. The plaintiff has no interest in that matter which can be served by his testimony here, and it is his interest only in this action which can disqualify him, and then only in the cases prescribed by the statute. The execution of the deed in trust and its registration are admitted in the answer and, besides, those acts were not a “personal transaction” between the plaintiff and the deceased. McCall v. Wilson, 101 N. C., 598; Thompson v. Onley, 96 N. C., 9.
*537John 0. McGowan, surety on the prosecution bond, was' a competent witness for the same reasons above given as to the plaintiff. There was error, however, in permitting him to prove the declaration of G. A. McGowan, for the very reason that his personal représentative not being a party, such declarations were mere hearsay. For this reason there should be a new trial.
There was no offer to make the personal representative of G. A. McGowan a party, and no exception that he was not a necessary party to this action, and that point is not before 'its. In Fraser v. Bean, 96 N. C., 327, it was held that the administrator is not a necessary party, even when the land on which the mortgage is to be foreclosed belonged to the intestate, affirming Avirett v. Ward, 45 N. C., 192. Here the intestate had never had any interest in it, but merely gave his marital assent to the mortgage by his wife, as above stated. It would seem, however,, that as a surety may be sued without joining the principal, the property put up as security may be subjected without such joinder, especially when, as here, the surety does not ask that the principal be made a party.