
    Elizabeth Roberts, Appellant, v. Henry R. Mack and Others, Respondents.
    
      Evidence—a grcmttyr of real property is incompetent to testify, as against the executrix and heirs of the grantee, in a creditor’s action to set aside the deed as fraudulent as to creditors.
    
    In an action brought by a judgment creditor of a grantor of real property against the grantor and the heirs and executrix of the grantee thereof to have the deed of conveyance set aside on the ground that it was executed in fraud of creditors, the grantor in the alleged fraudulent deed is incompetent, under section 829 of the Code of Civil Procedure, to testify to conversations which took place between himself and the deceased grantee, and the heirs and executrix of the deceased grantee are entitled to assert such incompetency.
    In such a case the grantor is a party interested in the event, for the reason that, if the plaintiff succeeded, the debt would be extinguished to the extent that the real property was sufficient to satisfy it.
    Appeal by the plaintiff, Elizabeth Roberts, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 24th day of December, 1903, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 24th day of December, 1903, denying the plaintiff’s motion for a new trial upon exceptions taken at the trial.
    
      Jay K. Smith, for the appellant.
    
      J. Stuart Page, for the respondents.
   Stover, J.:

This action was brought to have a deed executed by one of the defendants declared void as in fraud of creditors. The grantee of the alleged fraudulent creditor died before the commencement of this action, and his executrix and heirs are defendants. Plaintiff is a judgment creditor of the alleged fraudulent grantor.

Upon the trial the grantor in the alleged fraudulent deed was produced as a witness, and was asked to state conversations which took place between himself and his deceased grantee. This was objected to as incompetent under section 829 of the Code of Civil Procedure, and the objection was sustained.

We think the evidence was properly excluded.

The section so often construed is as follows : “ Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest, is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication. * *

The witness was certainly a party interested in the event, for if the plaintiff succeeded the debt of the witness would, to the extent that the property was sufficient to satisfy it, be extinguished.

Reliance is had upon the caseof Gillies v. Kreuder (33 Hun, 314). In that case the grantor in the deed died, and the grantee was permitted to testify to transactions with the deceased grantor. That case may be distinguished from the one at bar in that particular. In this case it must be quite clear that the witness was interested in the event, the defendants derive their title through the deceased, and we see no valid reason for holding that the defendants were not entitled to raise the objection.

We think that the Avitness was within the prohibition of the statute ; that the witness would be disqualified from testifying in his own behalf in an action against the grantee, and that the plaintiff’s claim "being under him the testimony is, therefore, within the prohibition. The parties objecting to the testimony were the personal representatives and heirs of the deceased, and undoubtedly derived their title from the deceased, and were entitled to raise the objection.

The judgment was right and should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  