This was an action for specific performance of a parol contract to convey land, alleged to have been made by one Job Card, deceased, in his life-time, with the plaintiff. The defendants are the heirs at law, personal representatives, *Page 321 and judgment creditors of the deceased. The cause was tried before the Hon. D. PRATT as referee. On the trial, on the 25th day of April, 1860, the plaintiff was offered as a witness, generally, in his own behalf, and was excluded. Several of the defendants were sworn, and testified as witnesses for the defense, under the objection of the plaintiff that they were incompetent under section 397 of the Code, being jointly interested with their co-defendants; and, as to certain of them, that they were husbands or wives of co-defendants, in whose behalf they were examined.
The sole finding of fact by the referee in his report was as follows: "I find that the parol contract alleged in the plaintiff's complaint has not been sufficiently proved, to entitle him to a specific performance of the same." Upon which he certified that the complaint should be dismissed. Judgment was entered accordingly, which was affirmed at the General Term, and the plaintiff appeals to this court.
There are only two questions in this case, and both are questions of evidence under the Code, viz.: First, did the referee err in excluding the testimony of the plaintiff? and, second, did he err in admitting the testimony of the defendants? The latter question presents no difficulty. The amendment of section 399 of the Code, adopted in 1860, was in force at the date of this trial, and it provided that "a party to an action * * * may be examined as a witness in his own behalf, or on behalf of any other party in the same mannner * * * as any other witness, except that a party shall not be examined against parties who are representatives of a deceased person, in respect to any transaction had personally between the deceased person and the witness; and except, also, that neither husband or wife shall be required to disclose any communication made by the one to the other." The defendants were, therefore, entirely competent as witnesses in their own behalf, or in behalf of each other. The only restriction upon their examination was, that neither of them, who was a husband or a wife, could be required to disclose any communication made by one to the other. Section 397 of the Code was substantially abrogated in 1857, when, *Page 322 by an amendment of section 397, parties were admitted to be witnesses in their own behalf, subject to certain limitations of notice; and it was wholly abrogated, when, in 1860, these limitations of notice were removed. The object of section 397 was to enlarge the rule of the common law, so far as to permit parties to testify in behalf of their co-parties, when that could be done, without permitting them to testify in their own behalf. Hence, it provided, that a party might be examined on behalf of his co-party "as to any matter in which he was not jointly interested, and, as to which a separate, and not joint verdict or judgment might be rendered." And, therefore, when, in 1857 and 1860, the legislature abolished the rule of the common law, fobidding parties to testify in their own behalf, it abolished the restriction of section 397, and that enactment might then as well have been stricken from the statute book. It has had no force or applition, in any possible case, since 1860. Equally ineffectual was the objection, that certain of these defendants stood in the relation of husband or wife to co-defendants; they were, nevertheless, under section 399, entirely competent to testify in their own, or their co-defendants' behalf, subject only to the restriction as to the disclosure of communications with husband or wife. There was, therefore, no error in the ruling of the referee, admitting the testimony of the defendants.
It is equally clear, from an examination of the same statute, that the plaintiff was competent as a witness in his own behalf, as to any matter other than transactions had personally between himself and the deceased. The question is, whether the exclusion of this witness was an error for which the judgment should be reversed. It is clear, that the plaintiff was not competent to speak as to any transactions had personally between himself and the deceased. The action was against the heirs at law, the personal representatives, and the judgment creditors of the deceased, all of whom were proper and necessary parties thereto; the heirs at law, as succeeding to the title of the deceased by descent, the personal representatives, because they might need the avails of the real estate in question to pay debts, and the judgment *Page 323 creditors, because of their liens upon the property. The fact, that the personal representatives were made parties, and appeared in the action, brings the case within the express terms of the statute, which made the party incompetent to testify to personal transactions, etc., as "against parties who are representatives of a deceased person," but I think that the statute equally disqualified the party to testify to such matters against the heirs at law, when the action related to the real estate of the deceased. In this, and in all similar cases, the heirs at law are made parties, because the action related to the realty. The heir at law succeeds to all the rights and responsibilities of the deceased in respect to the realty, and is, in all respects,pro hac vice, his representative. The executor or administrator, except in special cases, represents the deceased only as to the personal estate, and, hence, is denominated the "personal representative," while the heir at law, though not technically so denominated, is equally the representative as to the real estate. The reason for the rule under consideration certainly applies with equal force to the case of the heir at law, as to that of the personal representative. In either case the intention is, that the surviving party to the transaction in issue shall not have the unfair advantage of giving his version of the matter, when the other, and adverse party to the transaction, is prevented by death from being heard to contradict or explain it. The fact, that the legislature in 1862 substituted the words "executors, administrators, heirs at law, next of kin, or assignees," for the term "representative" in the statute, seems to me not to contravene, but to support, the construction here given to the previous statute. The object of the substitution may well have been, to express more specifically the intention of the original statute, and to have no ground for the misconsideration which, in one or two instances, had been put upon it
If the foregoing views are correct, the plaintiff, if sworn as a witness, could not have been permitted to testify to any matter of personal transaction between himself and the deceased. Was there any other matter to which, as appears by the record, his testimony would have been pertinent and material? *Page 324 I do not think it possible to say, that there was no such matter. It is true, that the only question considered by the referee was, whether the parol contract declared upon was ever made. This he found not proved, and his decision was based upon this sole finding. It is true, also, that the plaintiff could not have been permitted to give evidence of the actual making of the contract between the deceased and himself; but, it is possible, nevertheless, that he might have given evidence of facts, which would have borne upon that question, and that would have been material to the issue. It is impossible to say that he might not have testified to direct and positive admissions by the heirs at law, of the existence of such a contract. It is easy, also, to conceive of many circumstances possibly within his knowledge, which would have tended to establish the fact that such a contract had been made. But it is sufficient to say, that the plaintiff was competent as a witness, and that material facts may have been within his knowledge to which he was competent to testify. Such being the case, his exclusion as a witness was a fatal error, for which a new trial should have been granted.
The judgment of the Supreme Court must be reversed.
All concur.
Judgment reversed, and new trial ordered, costs to abide the event. *Page 325