This suit was instituted by the appellant, who was the plaintiff, against John P. Hall and James M. Safford, *265to compel the specific performance of a contract for the conveyance of real estate. The following are the facts alleged in the complaint:
On the 2d of April, 1855, John JR. Sell agreed that if the plaintiff (then Eleanor Mall, and unmarried) would pay a note of 700 dollars to one William G. Vawter, he would, in consideration of such payment, and as soon as it was made, execute to her a deed in fee for a tract of land which is situate in Jefferson county, and which the complaint describes, &c.; and at the same time he, John R. Hall, executed an instrument in wi’iting which sets forth the contract of sale and the condition on which such deed was to be made to the plaintiff. The instrument thus refex’red to was filed with the complaint, and is, in substance, as follows:
“ Know all men, &c., that I, John R. Hall, in and by my letter of attoxuxey, bearing date April the 2d, 1855, did appoint James JAL. Safford, of, &c., my attorney, for me and in xny name, to sell and convey to Eleanor Hall, upon certain conditions hereinafter named, a tx-act of land in Jefferson county, [descx’ibing it as the same is described in the complaint.] Now the conditions are, that if the said Eleanor will pay to William G. Vawter the sum of 700 dollars, (for which he holds my note payable on the 21st of March, 1856, and which is secured by mortgage on the above-described real estate,) then, so soon as she makes such payment, and procures a cancellation of the note and mox’tgage aforesaid, it shall be lawful for James M. Safford, my attorney, for me, and in my name, to make, acknowledge and deliver to her a good and sufficient deed of conveyance for said land,” &c.
Plaintiff avers that Safford, in consideration of his appointment, &c., undertook the tx’ust, and agreed to execute, as Hall’s attorney, a deed for the land when she, the plaintiff, had complied with the aforesaid conditions. And plaintiff, in fact, says that they have been complied with; that she has *266paid tlie 700 dollars to Vawter, and lias taken up and cancel-led the note and mortgage. But the said attorney has not, nor has the said John R. himself, made her a deed, &c-, wherefore she prays that Jphn R. Ilall be compelled to convey, &c., or that a commissioner be appointed to make such conveyance.
The defendant, James M. Safford, demurred to the complaint. His demurrer was sustained, and the plaintiff excepted. The other defendant, John R. Hall, answered by a denial. At this stage of the proceedings the death of Hall was suggested, and Hila Hall, his only child and only heir, was by the Court duly admitted a defendant; and being an infant, she appeared by guardian ad litem, and answered by a general denial. The Court tried the issues and found for the defendants. New trial refused, and judgment.
The record contains a bill of exceptions, which shows that while the trial was in progress, the plaintiff offered herself as a witness, and proposed to preve by her own testimony “ that prior to the commencement of this action, she paid to the said William C. Vawter 800 dollars, as the full amount of the note and mortgage referred to in the written instrument filed with the complaint.” But the Court, on the alleged ground that she was incompetent as a witness, refused to allow her to testify in the case.
The errors relied on by the appellant in his brief, are thus assigned: 1. The Court erred in sustaining the defendant, Safford’s, demurrer to the complaint. 2. There was error in the refusal to admit the plaintiff' as a witness.
There is nothing in the first assignment. The mere fact that Safford was, in and by the instrument sued on, appointed Hall’s agent, did not make him a necessary, or even a proper party to the action. The complaint fails to show that he had any interest in the controversy adverse to the plaintiff', and the result, is, the demurrer, as to him, was properly sustained.
*267The second assigned error remains to be considered. Was the plaintiff a competent witness? An act of 1861 provides, sec. 2, that “every free white person of competent age shall be a competent witness in any cause or proceeding,” * * and that “any person, a party in the action, may testify in his own behalf, or in behalf of any other party or parties therein.” But section 3 enacts that “ persons insane at the time of examination', and children under ten years of age and incapable of understanding that about which they are examined, * * shall not in either case be included in the second section of the act, or be competent witnesses.” * * “ Provided, That where a negro, Indian, or person excluded on account of mixed blood, is a party to a cause, his opponent shall also be excluded; And provided further, That in all suits where an executor, administrator, or guardian is a party in a case where a judgment may be rendered either for or against the estate represented by such executor, administrator or guardian, neither party shall be allowed to testify as a witness, unless required by the opposite party or by the court trying the cause, except in eases arising upon contracts made with the executor, administrator or guardian of such estate.” Acts 1861, p. 52.
Thus, it will be seen, that the plaintiff was competent to testify in her own behalf, unless the provisoes of the act ex-; eluded the defendant from being examined as a witness. Mia Hall was the only defendant; she was an infant, and appeared by guardian ad litem. Was she, in view of the provisoes, excluded from testifying in the cause? Her position as a defendant is evidently not within the first proviso. Nor does the second exclude her, because she was neither executor, administrator nor guardian. Defendant, being an infant, may have been under ten years old, and, on account of tender age, not admissible as a witness; but the fact that she was thus inadmissible did not render the plaintiff incompetant, because *268such, incompetency exists only in cases pointed ■ out in the provisoes. The refusal to allow the plaintiff to testify was, no doubt, erroneous, and the judgment must, therefore, be reversed.
--, for the appellant. --, for the appellee. Per Curiam.—
The judgment is reversed, with costs. Cause remanded.