
    Sitlingtons v. Brown and Others.
    February, 1836,
    Richmond.
    Mortgages — Witnesses—Competency of Mortgagor and Wife to Prove Plaintiff’s Notice of Prior Mortgage. — A debtor mortgages the same land, by successive deeds, to two several creditors, and the second deed is duly recorded, but the first is not; the land is sold under the provisions of the second deed, and the creditor in that deed becomes the purchaser; On bill by first mortgagee against the mortgagor and second mortgagee, charging the second mortgagee with notice of the prior unrecorded mortgage, and praying that the land be resold to satisfy plaintiff’s debt: Held, neither the mortgagor nor his wife is a competent witness for plaintiff, to prove that the second mortgagee had notice of the plaintiff’s prior mortgage — hesitante Brockenbrottgh, J.
    Chancery Practice — Answer—Failure of Affidavit to State Person Taking Is Justice of Peace. — A defendant in chancery prepares an answer admitting the allegations of plaintiff’s bill, and it is certified as sworn to, but the person certifying the affidavit does not style himself in the certificate a justice of the peace, nor is otherwise proved to be a magistrate empowered to administer oaths; defendant dies, and this paper so certified is afterwards filed in the clerk’s office; Held, it is not the answer of the party, nor evidence in the cause.
    Appellate Practice — Cause Remanded — Failure to Prove Allegations of Bill. — Decree for plaintiff reversed by this court, because the allegations of the bill are not proved by competent evidence; but it appearing probable that the defect can be supplied. cause remanded to inferior court, to afford plaintiff opportunity of adducing other proof.
    Appeal from a decree of the superiour court of chancery of Greenbrier. The bill was exhibited by H. Brown and G. Mayse against W. Sitlington, A. Sitlington and A. Morris, alleging, that Morris executed a deed of trust conveying four parcels of land to trustees, for the purpose of securing a debt of 291 dollars due to Brown, and another of 886 dollars due to Mayse, but this deed was not recorded; that sometime after the execution of this deed, W. Sitlington procured from Morris a deed of trust conveying a part of the same trust subject to A. Sitlington, trustee, to secure a debt due to W. Sitlington, and had the same duly recorded ; that before *and at the time of the execution of this last deed, both W. Sitlington and A. Sitlington, the trustee, had full notice of the execution of the prior mortgage under which Brown and Mayse claimed; that, therefore, they were entitled to priority over W. Sitlington ; that A. Sitlington, however, had sold the trust subject mortgaged to secure the debt due to W. Sitlington, and W. Sitlington became the purchaser thereof at that sale, but the bill charged, that that sale was an unfair one; and that W. Sitlington had thus purchased the property at a price far below its value. 'The bill, therefore, prayed, that the sale should be set aside, and a new sale ordered ; and that the court should decree the proceeds of such sale to be paid to the plaintiffs, as the mortgagees entitled to priority.
    The trustee, A. Sitlington, put in his answer, denying that he had any notice of the mortgage under which the plaintiffs claimed; and denying too, the imputed unfairness in the sale made by him under the deed of trust executed by Morris to secure the debt due to W. Sitlington. The trust subject mortgaged by that deed was sold, at the trustee’s sale, to W. Sitlington, for 300 dollars.
    W. Sitlington himself died pending the cause, having prepared an answer to the bill, in which he, in effect, acknowledged notice of the prior deed under which the plaintiffs claimed. The suit being revived against his heirs, who were infants, an answer was put in for them by a guardian ad litem; in which, of course, nothing was admitted or denied.
    The bill was taken pro confesso as to the defendant Morris. But he died before the sale of the trust subject ordered by the court was made; and the suit was not revived against him.
    The depositions of Morris, and of his wife, were taken and filed for the plaintiffs. They deposed, that W. Sitlington had full notice of the prior mortgage to Brown *and Mayse, before the mortgage to him was executed, and that he prevented the prior mortgage from being duly recorded.
    The answer which W. Sitlington had prepared before his death, and in which he acknowledged notice of the prior mortgage, was inserted in the record. It appeared, that it had been sworn to by him before J. Hown; but Hown did not style himself a justice of the peace, and there was no proof that he was a magistrate authorized to administer an oath. The clerk certified that this answer was filed in his office, but was not filed in the cause on account of the defendant’s death.
    The chancellor, declaring that W. Sitling-ton had notice of the prior mortgage to the plaintiffs when he procured the mortgage to himself, and that, therefore, the plaintiffs were entitled to priority, ordered a sale of the whole trust subject mortgaged by Morris to the plaintiffs. The sale was made accordingly; and that part of the trust subject which was mortgaged by both the deeds of trust, and which had been sold under the deed of trust for the benefit of W. Sitlington, for 300 dollars, was sold under the chancellor’s decree for S44 dollars. The sales having been reported, and the proceeds of the whole subject falling far short of the debts due to the plaintiffs, the chancellor finally decreed, that the property should be conveyed to the purchaser at the sale, and that the heirs of W. Sitlington should release all claim of title to him; giving them a day after their attainment to full age, to shew cause against the decree. And they appealed to this court.
    The cause was argued here, by Johnson for the appellants, and Robinson for the appellees,
    upon two points1. Whether the depositions of Morris and his wife were competent evidence to prove, that W. Sit-lington had notice of the prior mortgage to Brown and Mayse when he procured the mortgage to himself? 2. Whether the paper ^called W. Sitlington’s answer could properly be looked into, for evidence of such notice of the prior deed? If either of these questions were resolved in the affirmative, there was proof of W. Sit-lington’s notice of the prior deed: if both were resolved in the negative, there was no proof of such notice, upon which the claim of Brown and Mayse to priority depended.
    
      
      Mortgages. — See monographic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      Appellate Practice — Cause Remanded — Failure to Prove Allegations of Bill. — The decree for the plaintiff was reversed by the appellate court because the allegations of the bill were not proved by competent evidence, but it appeared probable that the defect could be supplied and the cause was remanded to the inferior court to afford the plaintiff opportunity of adducing other proof. For this proposition the principal case is cited with approval in Watkins v. Carlton, 10 Leigh 573, which case also cites Duff v. Duff, 3 Leigh 523; Cropper v. Burtons, 5 Leigh 426 (see note); Miller v. Argyle, 5 Leigh 460. See mono-graphic note on “Appeal and Error” appended to Hill v. Salem and Pepper’s Ferry Turnpike Co., 1 Rob. 263.
    
   TUCKER, P.

I am inclined to think the death of Morris before the sale, ought to have been deemed a sufficient objection to proceeding to sell, until the case was revived against his representatives; but the point is unnecessary to be decided, as the decree is, in my opinion, fatally’ defective in other respects. The gist of the case is the notice on the part of W. Sitlington of the prior deed of trust. This is not established by competent evidence. 1. The paper called the answer of W. Sitlington is not authenticated or proved, so as to make it evidence in the cause, nor does it even appear by whom it was placed among the papers. Moreover, it does not appear th-at the person who certified the affidavit was a justice of the peace; so that the evidence that the paper was sworn to by Sitlington is altogether defective. 2. Morris was an interested witness. If this decree be affirmed, he will have paid off S44 dollars of his debt to Brown and Mayse, and he will be liable to Sitlington for 300 dollars; whereas, if it be reversed, he will be liable to Brown and Mayse for 544 dollars, while he is relieved as to Sitlington only to the value of 300 dollars. Thus, he is a gainer 244 dollars by a decree founded upon his own evidence. He is, therefore, clearly interested and incompetent. If so, it is equally clear that his wife was incompetent. For Morris was party to the suit, and by her testimony he is made to gain 244 dollars. There is no precedent for admitting the testimony of a wife in favour of her husband, he being a party to the cause. In Baring v. Reeder, 1 Hen. *& Munf. 154, the husband was no party. That case has no resemblance to this. Therefore, I am of opinion, that the decree should be reversed, and the cause sent back for further proceedings, that the parties may have an opportunity of authenticating, if it can be done, the answer of Sitlington, which, if genuine, must put an end to the cause. The court having considered the testimony produced by the plaintiffs as competent and sufficient, and his court deciding otherwise, jtistice requires that the cause should go back to enable the plaintiffs to supply the defect, as it seems very probable there is in existence conclusive evidence in support of their case. My opinion in the case of Duff v. Duff’s ex’or, 3 Leigh 523, may be referred to, as containing my views upon a subject strongly analogous. It is unnecessary to repeat them here.

BROOKE and CABELL, J., concurred.

BROCKENBROCJGH, J. I am not satisfied that Morris was an interested witness; but as the rest of the court are of opinion that he is incompetent, I shall say nothing on the subject. I concur in the opinion, that the paper in the record called the answer of W. Sitlington, cannot be regarded either as an answer or as an exhibit in the cause.

CARR, J.

I feel no-doubt from the facts in the record, that the decree is substantially right; and I lament, that for want of some little care in authenticating that which no doubt was taken for granted, this cause must be sent back. I do not object to the failure of reviving as to Morris. I should not be for reversing, if that were the only defect. But the point is the defect of proof as to the paper purporting to be Sitlington’s answer. If the clerk had certified that this paper was filed by Sitlington himself as his answer, or if the 'person *who certified that he swore to it, had signed himself a justice of the peace, or had been proved to be one; I should have taken the paper for either an answer or a sworn statement of Sitlington; and that proving full notice of the prior deed (which is the only point in the cause), I should have had no hesitation in. affirming the decree. But as none of this evidence is furnished, I must concur in reversing the decree, and sending the cause back, to give the plaintiffs an opportunity to furnish this proof. I do not think Morris or his wife were competent witnesses.

Decree reversed, and cause remanded for further proceedings.  