
    Williams et al. v. Barrett et al.
    1. Promissory Note: payment: instructions. Instructions upon the subject of payment and the effect to be given to certain evidence considered and held erroneous.
    2.--: mortgage: alteration. Where the surety and indorser of a promissory note alleged as a defense thereto that a mortgage was given by the principal to secure the note, from which the description of a certain tract of land was erased by agreement between the holder of the noto and the mortgagor to enable the latter to sell the land to an innocent purchaser, it was held that an instruction charging the jury that, as the land was sold by the mortgagor before'the mortgage was recorded, the consent of the indorser and surety to the erasure became immaterial, was erroneous.
    8. Evidence: transactions with decedent : party. The testimony of a parly as to transactions between himself and one since deceased are incompetent under the provisions’of section 3639 of the Code, though the party has, in fact, no interest in the issue upon which such testimony bears.
    
      Appeal from Allamahee District. Court.
    
    Friday, December 12.
    Action upon a promissory note, executed by the defendants John T. Clark and Q. M. Barrett as makers, and payable to tbe order of the defendant O. J. Clark. O. J. Clark indorsed tbe note to IT. S. Weiser, now deceased, and waived demand and notice of non-payment. The plaintiffs are tbe administrators of the’estate of H. S. Weiser.
    John T. Clark answered, admitting tbe execution of tbe note, and averring that tbe same was fully paid in tbe life-time ot IT. S. Weiser. O. M. Barrett answered t.liat be executed tbe note as surety for Jolm T. Clark, of which fact Weiser had notice when he received the note from O. J. Clark. That there was executed and delivered with said note, and as security for the payment thereof by John T. Clark, a mortgage upon certain tracts of land; that O. J. Clark received said mortgage with said note and transferred the same to Weiser, and that after receiving the said note and mortgage the said Weiser, without the knowledge or consent of this defendant, released one of the tracts of land by erasing the description thereof from the mortgage and giving the mortgagor the right to dispose of the same; that the property released was of sufficient value to pay said note, and that the other mortgaged property' was of little or no value. Barrett also pleaded payment of the note.
    O. J. Clark averred that the note was a mere accommodation upon his part, made for the purpose of obtaining a loan of money from Weiser to John T. Clark and O. M. Barrett. He also pleaded payment, and that he indorsed and guaranteed the'payment of the note upon the faith of the mortgage given by John T. Clark to secure the payment, and he averred the alteration of the mortgage by Weiser without his knowledge or consent, and the permission of John T. Clark to sell and dispose of the property released from the mortgage to innocent parties. 0. J. Clark also averred that Weiser willfully neglected to record said mortgage, and thus permitted John T. Clark to sell the mortgaged property to innocent parties. All of the defendants claim that John T. Clark deposited with Weiser a number of notes as collateral security for the note in suit, and that Weiser has never accounted for the amount collected by him upon said collaterals.
    There was a trial by jury; verdict arid judgment for the plaintiff. Defendants appeal.
    
      J. T. Ciarle, 0. J. Ciarle, and Brown <& Wellington, for appellants.
    
      E. E. Cooley, for appellee.
   Rothkock, J.

— I. Objections are made by counsel fori appellee, that the exceptions taken upon the trial and the assign* ment of errors are not sufficiently specific. Without referring ' to these objections in detail, it is sufficient to say that such exceptions and assignments of error as we have found it necessary to determine, are sufficiently made. We may remark that where’"exceptions are taken to instructions to the jury at the time they are given, the ground of the exception need not be stated. .... . , . .

II: The court instructed tbe jury upon the question of payment as follows:

Second. The only question for you to consider and determine in ibis case under the issues and evidence is, lias the note been Paid? an(l °n that question the burden is on the defendants to satisfy you by a preponderance 0f evidence that the note was paid.
Third. Evidence has been offered by defendants tending to show that some delay occurred in demanding payment and bringing suit for the collection of the note, and also tending to show that plaintiffs made settlements with Barrett, John T. Clark, John T. Clark & Co., and Orlando Clark in tlieir individual or company capacity, after the note became due, and also paid money to some off them without payment of the note in suit. You are instructed that the delay in demanding payment, or in bringing suit to enforce the collection of the note, or such settlements, or payments to defendants, raise no legal presumption that the note has been paid.
“Fourth. The jury are further instructed that the letter from Weiser to Barrett, or the statement of account of Weiser to Barrett, furnish no presumption against plaintiffs that the note in suit lias been paid.”

There was evidence that the note became due some nineteen months before Weiser’s death; that he was a banker and a. prompt collector of debts due to him, and a careful and prudent business man. There was also evidence to the effect that alter this note became due there were settlements with the defendants, as recited in the instructions, and payments of money made to defendants.

Now while it is true these circumstances and others which were in evidence do not of themselves raise a presumption of payment, yet they are proper facts to be taken into considera-' tion by the jury in determining the question whether the note was paid. The instructions upon this question are erroneous because they do not properly state to the jury the force and effect of these circumstances. There was also error in refusing the instructions asked by tbe defendants upon tbe question. It may be tliat-they are prolix and recite tbe facts and circumstances relied upon with more particularity than necessary, . but the effect of refusing them wholly, and giving those above set out, was to practically take their consideration from the

III. It appeared in the evidence that O. J. Clark was an accommodation indorser, and that Barrett executed the note as surety for John T. Clark. The mortgage was given to 0. J. Clark, and by him transferred to Weiseiv The court instructed the jury properly, as we think, that the failure of Weiser to record the mortgage did not dis-. charge Barrett, nor 0. J. Clark, from liability as surety or accommodation indorser. But the court farther instructed the jury that, as the property described in the alleged altered clause of the mortgage was sold and conveyed by John T: Clark to parties having no notice of the mortgage, it was immaterial for the jury to inquire whether the alteration (if made by Weiser) was so made with or without the consent of Barrett and 0. J. Clark. We think this instruction was incorrect. The theory of the defense of Barrett and 0. J. Clark, based upon the erasure of the description of the property from the mortgage, was, that it was done by reason of some arrangement between Weiser and John T. Clark. Conceding that there- was no evidence showing that such was the fact, yet there ■ certainly ought not to be a presumption that if Weiser made the alteration he made it without a purpose, and that John T. Clark would have conveyed the property to an innocent party whether the erasure had been made or not. We think it was a material question for the jury to determine whether the erasure was made by Weiser without the knowledge or consent of Barrett and O'. J. Clark, and that the effect of the instruction under consideration was to say to the jury that John T. Clark would have conveyed the property to an innocent party without this erasure having been made, simply because the mortgage was not recorded. There was evidence tending to show that there was' no erasure in the mortgage when it was in the possession of-0. J. Clark, and by him delivered to Weiser. John T. Clark is now insolvent. The parties who were his surety and accommodation indorser had the right to expect that Weiser would hold the mortgage for their protection as well as his own.

IY. There is one other alleged error which, in view of a new trial, it is proper we should determine. JohnT. Clark, in testimony given upon the trial, stated that the erasm’® was made in the mortgage in Weiser’s pan]j; that Weiser made it at the instance of said Clark, and that he (Clark) then deeded the property to a church. Upon a motion being made the testimony was excluded.

We think this ruling was correct. Counsel for appellant-contend that the witness was competent because he had no interest whatever in the question as to the release of Barrett and O. J. Clark by reason of the erasure; that the erasure did not in any manner affect the liability of the witness. This may be conceded, but the language of section 3639 of the Code is plain and explicit that “no party to any action or proceeding, nor any person interested in the event thereof * * * shall be examined as a witness in regard to any personal transaction or conversation between such witness and a person at the commencement of such examination deceased, * * -- * against the executor or heir at law * * * * of such deceased persons.” The part of the section above quoted exclude two classes of persons: 1st, parties to the action; and 2d, any person interested in the event thereof. JohnT. Clark was a party to the action, and for that reason was disqualified as a witness to testily to personal transactions between himself and the deceased. We think the fact that the other defendants were not necessarily jointly liable with him, and that separate actions might have been maintained against the defendants, makes no difference. There was but one action on trial, and the witness being a proper party defendant therein was by the very terms of the statute incompetent to testify to the facts under consideration.

For the errors in the instruction to the jury, and refusing to give the instruction asked by defendants, the judgment will be reversed and the cause remanded for a new trial.

Reversed.  