According to the case of Paine v. Tucker & al. 21 Maine, 138, the authority of Mrs. Page to execute the mortgage, it being an instrument under seal, and not made in the presence of her husband, Samuel Page, coidd not be proved by parol evidence. Her testimony would not be sufficient to show a valid execution of the mortgage. But the defendant subsequently offered it in evidence, and by the agreement of the parties it was received. Her testimony therefore respecting its execution was rendered immaterial. But aside from the question of her authority to make the mortgage, her evidence tended directly to establish the title of her husband to the property embraced in it. In the sale of personal property there is an implied warranty of title on the part of the vendor, and he cannot be a witness for his vendee in an action involving the title, on account of his interest to sustain it. As the husband could not be a witness for the plaintiff to sustain his title to.the property, neither could the wife, because they have a community of interest.
The title having passed to the plaintiff by a mortgage, does not make the witness any the less interested, for if the plaintiff recovers, then the debt, to secure which the mortgage *89tvas given, is satisfied pro tanto. and if he fails of recovering on the ground that the mortgager did not oavii the property, the debt would remain unpaid to that extent.
But it is contended by the plaintiff’s counsel, that the interest of the witness is balanced. There does not appear to be any claim made, except for one item, the other having been returned. After the commencement of this suit, the defendant brought an action against Samuel Page, gave him credit for the article in dispute, without having purchased it of him, and took judgment against him for the balance due on account, by default.
If the plaintiff recovers, the defendant will not be at liberty to commence an action against Samuel Page to recover back the amount of the item credited. That credit must remain until the judgment is reversed. And the defendant having commenced his suit and voluntarily given the credit, with a full knowledge of the plaintiff’s claim, and without any fault on the part of Page, would probably find it difficult to obtain a review of that action, and an amendment, by striking out the item credited in his account. The liability of Page to the plaintiff, if he fails in his suit, owing to a defect in the title of Page, is certain, but if the defendant fails, it is not equally so as to him ; it is in reality altogether uncertain, for it would depend upon the success of the defendant in obtaining and prosecuting a review. The interest of the witness was not therefore balanced, and she was incompetent. And as a new trial must be granted for this cause, it becomes unnecessary to consider the other question in the case, in relation to the refusal of the Judge of the District Court, to entertain the motion made concerning an indorser of the writ.
Exceptions sustained, and new trial granted.