
    William M. Hubbell et al. v. Eliza Hubbell et al.
    A., being seized of certain real estate, conveyed the same to B., bis son, by deed absolute on its lace; B. afterward by like deed conveyed the same estate to 0., who at the same time conveyed it to D., the wife of B. After the death of A., his widow and certain of his heirs brought an action against B. and his wife D., and' certain other of the heirs of
    A. (the latter of whom, though identical in interest with the plaintiffs, declined to be joined with them as such). The object and prayer of the petition was to raise a trust on the deed from A. to B. in favor of the widow of A. for life, and remainder to the heirs of A., and to compel a conveyance from D. in execution of the trust, and also to compel
    B. to account to the widow of A. for rents and profits. Pending the action, and after separate answers by B. and D. denying the trust, and setting up the statute of frauds, D. died, and tho action was revived against her heirs, who answered, claiming an absolute estate in the premises, by inheritance from their mother. B. also filed a supplemental answer, claiming an estate for life by the curtesy.
    
      Held, that under section 313 of the code, as amended April 15, 186? (S. & S 556), the plaintiffs (and the defendant who was in interest with them), were incompetent as witnesses to testify against the heirs of D. to facts which occurred before the death of D.
    When there are two parties, plaintiffs or defendants, claiming several interests under the same title or alleged state of facts, and the adverso party is a competent witness as against one of them, and incompetent, under section 313 of the code, as against the other, and the case is one in which separate judgments may be rendered, the testimony of such party may be received in evidence, but can be used and considered only as against the party as to whom tho witness was competent; and tho court should render such judgment or judgments in the case as would have been warranted by the evidence, in case there had been several actions — the evidence being considered in one action and not in tho other.
    A tenant by the curtesy is not such a representative of the tenant in fee, or in such privity of estate with him, that a judgment or decree affecting the title of the former will conclusively bind the estate of tho latter.
    In an action to declare a trust and charge it upon the trust estate, the holders of the legal title and persons claiming an interest in the property aro necessary parties, but a former trustee, who has been divested of all title and interest therein, is not a necessary party.
    Error, to the Superior Court of Cincinnati..
    
      The following statement of facts will be sufficient for an understanding of the points decided in this case :
    June 16, 1838, N. S. Hubbell, Sen., purchased of one Joseph Bonsall the real estate in controversy, and took a title bond in favor of his son, William M. Hubbell.
    August 11, 1842, Bonsall conveyed the premises, in fee simple, to A. S. Hubbell, Sen.
    June 10,1846, N. S. Hubbell, Sen., executed and delivered to his son, William M., a deed purporting to convey the premises to him in fee absolute, for the consideration of $3,0007
    November 11,1857, William M. Hubbell, by deed absolute on its face, and purporting a valuable consideration, conveyed the premises, in fee, to one George W. Rice, and at same time said Rice, by like deed, conveyed the same to Rebecca G. Hubbell, the wife of said William M. Hubbell.
    In the year 1855, said N. S. Hubbell, Sen., having been in possession of the premises from the date of his purchase in 1838, died intestate, leaving Eliza Hubbell, his widow, and William M. Hubbell, Mary Eoulds (intermarried with Thomas H. Eoulds), Nathaniel S. Hubbell, Jr., Charles H. Hubbell, and John W. Hubbell, his children and only heirs, surviving him.
    December 26, 1865, said Eliza Hubbell, widow, Mary Eoulds, with her husband, and Charles II. Hubbell and John W. Hubbell filed their petition, in an action commenced in the Superior Court of Cincinnati, against William M. Hubbell, Rebecca C. Hubbell, his wife, and Nathaniel S. Hubbell, Jr. (the latter of whom was in interest identical with the plaintiffs, but declined to join with them as a plaintiff), the object and prayer of which was to establish a trust upon the estate conveyed as aforesaid, in favor of said Eliza during her life, with remainder to the children and heirs of said Nathaniel S. Hubbell, Sen., in fee, and to compel a conveyance, in execution of the trust, from Rebecca C. Hubbell, and an account from William M. for rents and profits.
    The allegations of the petition were, in substance, that Nathaniel S. Hubbell, Sen., by his deed of June 10, 1816, conveyed said premises to said William without consideration, and upon the express trust and confidence that he would hold the same for the use of said Eliza during her life and the remainder for the use of the heirs of said grantor in fee ; and that the conveyances from said William to Rice, and from Rice to said Rebecca, were voluntary, and with full knowledge, on the part of said Rice and said Rebecca, of the trusts and confidences aforesaid.
    The defendants, William and Rebecca, answered separately, each denying that said William had taken the title to said premises as trustee, and setting up, by way of further defense, the statute of frauds. And Rebecca further denied that she had knowledge of such trust, if it existed, and averred that the conveyance to her was made upon a valuable consideration.
    Afterward, to wit, on the 2d of May, 1866, and during the pendency of the suit, Rebecca died, whereupon the action was revived against her heirs, to wit: Ella, Ida, Isadore, and Viola Hubbell, infants, and Edward, Julia, and William M. Hnbbell, Jr., adults.
    The adult heirs of Rebecca answered jointly, and the infants by their guardian, denying each and every allegation in the petition, except that the title to said premises had been conveyed to their ancestor, Rebecca C. Hubbell, and claiming that the same had descended to them as an absolute estate.
    After the death of his wife, William M. Hubbell filed a supplemental answer claiming an estate by the curtesy in said premises.
    The cause came on for trial upon the issues thus joined at special term of the court, when the plaintiffs, to maintain the issues on their part, offered to read in evidence the deposition of Eliza Hubbell, one of the plaintiffs, which was objected to by the defendants, and by the counsel for the heirs of Rebecca C. Hubbell, because of the incompeteucy of the witness, which objection ivas overruled and defendants excepted. Aud thereupon objection was made, on behalf of said heirs, to the reading of certain parts of said deposition which tended to prove the trust as alleged in the petition, and which consisted of facts (the same being specifically objected to) which occurred before the death of Rebocea C. Hubbell. These objections were also overruled, and the deposition was read, to all of which exceptions were taken by the defendants.
    The same objections, rulings, and exceptions were made to the depositions of Thomas II. Eoulds and John W. Hub-bell, plaintiffs, and of Nathaniel S. Hubbell, Jr., one of the defendants.
    The trial resulted in a decree as prayed for in the petition; and afterward, upon petition in error by the defendants below, the decree was affirmed at general term of said court, so modified, however, as to find a resulting trust in favor -of Nathaniel 8. Hubbell, Sen., which, upon his death, had descended to his heirs and legal representatives.
    This proceeding is now prosecuted in this court to reverse the judgment below, upon the ground, among other errors assigned, that the testimony of the plaintiffs in the original action, and of Nathaniel S. Hubbell, Jr., was erroneously admitted in evidence as against the heirs of Rebecca O. Hubbell.
    Although counsel argued upon the whole case, the Reporter presents only their points and citations upon the questions decided by the court.
    
      King 8¡ Thompson, for plaintiffs in error :
    The plaintiffs below, together with Nathaniel S. Hubbell, Jr., defendant of record, but united in interest with them, were permitted to testify. This, against the children of Rebecca Hubbell, defending as her heirs, and notwithstanding objections of counsel in their behalf. The exceptions ai’e noted. The testimony is incompetent. S. & S. 556. In this matter Nathaniel S. Hubbell, Jr., as a witness, does not differ from the rest. Ilia place, as a party united with the defendants, leaves them none the less adverse to him, 11 Ohio St. 378.
    
      
      Matthews, Ramsey $ Matthews, for defendants in error:
    It is objected, that the witnesses who testified on behalf of the plaintiffs, so far as they were parties to the record and in interest, were incompetent, and that the court erred in permitting them to testify.
    . This objection is founded upon the provisions of the act of April 15,1867, amending section 313 of the civil code (S. & S. 556), which was in force at the time of the trial in July, 1868.
    That act denies to any party to a civil action the right to testify where the adverse party is the guardian or trustee of a child or children of a deceased person, or ... .
    defending as heir or devisee of a deceased person, except in certain enumerated cases.
    So far as the principal defendant, William Al. Hubbell, is concerned, this statute has no application. He did not defend as heir or devisee of a deceased person.
    And as to the infant children of his wife, Airs. Rebecca Hubbell, who died pending the suit, but before trial, the answer is obvious. The only fact material to be shown in respect to them was, that their mother was a volunteer, the conveyances from William Hubbell to Rice, and from Rice to her, being without consideration. That fact being proven, or admitted, as it was, they had no rights to the property, except such as their father could give by a voluntary conveyance; and it only remained to make out the case against him to entitle the plaintiffs to the relief demanded. The “ adverse party ” referred to in the statute, in the present case, was William M. Hubbell; and on his behalf, and as against him, no objection could be made to the witnesses. The children of his wife, although necessai’y parties, were only collaterally interested, as claiming a title dependent on his, which, they being volunteers, necessarily fell or stood according to the fate of his. The tact that their title was no better than his, depended on the single fact that their mother paid no consideration for the conveyance, as was apparent, indeed, from the nature and face of the transaction, Rice being used simply as a medium by which the husband should convey to the wife, and the witnesses.objected to were not called to prove that; so that the witnesses being competent to establish the nature of his title, the effect of the testimony, by operating on that of the heirs of his wife, through him, was necessary matter of law. To sustain the objection would be to protect William M. Hubbell beyond and contrary to the intent of the statute, the whole object of which evidently is to protect heirs and devisees from claims which it supposes their ancestor, if alive, would have it in his power to defeat! But here the very party from and under whom they claim is alive and a party defendant, against whom also relief is sought. And a finding and judgment against him will estop them from setting up any title that must be traced through him. If it be said that no such estoppel can arise in the present case, because the title of Rebecca Hubbell and of her children, as her heirs, accrued before the beginning of this suit and the rendition of the judgment in it, we answer that, in this very suit, William M. Hubbell also defends as representative of his wife’s estate, and therefore of the estate of their children, as her heirs; because by her death a new title accrued to him also, as tenant by the curtesy, and his children are bound by a judgment against him binding his estate, by reason of the privity of estate which connects them and their titles. This is the prineijfie of the decision in Kinsman v. Loomis, 11 Ohio, 478. The estoppel upon them is as effectual as if it were from warranty. Douglass v. Scott, 5 Ohio, 194; Scott v. Douglass, 7 Ohio, 227. If title can be traced by B. to A., and B. can fasten upon A. the incapacity of asserting his right, in consequence of his admission that he has conveyed to B., it is not just that a strauger, standing on A.’s claim only, and relying on no superior right, should be permitted to contest the existence of a fact which those interested have settled. The law, therefore, wisely attaches the disability of A. to all who maintain his title, and permits such estoppels to be used, not merely defensively, but to sustain actions of ejectment. 2 Hilliard's Ab. 401.
    
      At common law, the tenant for life was hound to defend the title, if attacked, in a real action, which concluded the title, because the interest of the reversioner or remainder-man might be affected by the judgment against him ; ancl to enable him to do this, lie might call upon the owner of the inheritance, after the determination of his estate, to come in and assist in the defense, which was called “ praying in aid; ” but he might, if he saw fit, go on and defend without resorting to those whose estates were dependent on his, he being in law the proper tenant of the praecipe. 1 Washburn Real Property, 95; 1 Preston Estates, 207, 208.
    In equity, upon similar grounds of a virtual representation of all the proper interests when there is real estate in controversy which is subject to an entail, it is generally sufficient (all the parties having antecedent estates being before the court) to make the first tenant in tail in esse, in whom an estate of inheritance is vested, a party with those claiming the prior interests, without making any persons parties who may claim in remainder or reversion, after such vested estate of inheritance. It will make no difference in the case, whether the bill be brought by or against such tenant in tail, for in each case he is equally the representative of the subsequent estates and interests. And a decree for or against such first tenant in tail, will generally bind those in remainder or reversion.
    The proof of the trusteeship of William for the plaintiffs, at the time of the conveyance to his wife, is simply establishing one of the links in their chain of title, and whatever establishes it against him as of that date, binds all the successors to his legal title. This was the point expressly decided in Kinsman v. Loomis, 11 Ohio, 478, above cited. It is a principle of general application. So that in cases of judgments, while, although as a general rule, they are conclusive upon parties and privies only, and strangers may avoid them whenever they would otherwise be injuriously affected by them; yet, when the effect of the judgment is incidental as to others, by constituting a link in the chain of title, in such cases, it is held that third persons so affected can not impeach the judgment. Bayler v. Dejarnette, 13 Grat. 152, 172; Barney v. Patterson, 6 Har. & J. 182, 203; Taylor v. Phelps, 1 Har. & G. 492; Inman v. Mead, 97 Mass. 310; Secrist v. Green, 3 Wal. 744; Casler v. Shipman, 35 N. Y. 533; Bigelow on Estoppels, 81.
    There is still another important exception to the rule, that judgments only bind parties and privies. They are conclusive against third persons of the relationship established between the parties, and of the extent of the relationship. Tbe relation of debtor and creditor, for instance, established by a judgment in favor of A. against B., can not be disputed by C.; nor can the amount of the judgment debt be contradicted. Candee v. Lord, 2 Comst. 269; Voorhees v. Seymour, 26 Barb. 569, 585; Sidensparker v. Sidensparker, 52 Maine, 481. The judgment in this particular establishes a status, and would seem to be in the nature of a judgment in rem. So that in tbe case of a creditor’s bill, or a bill to foreclose mortgaged premises, to marshal liens and assets, the relationship of debtor and creditor, established by competent evidence against the debtor himself, can not be impeached or gainsaid by any other creditor, except in cases of collusion and fraud. Chamberlain v. Carlisle, 26 N. H. 540, 553.
    And this principle has a special application in cases like the present, of an alleged trust.
    Even when the statute of frauds in force requires proof in writing of the existence of an express trust, the statute will be satisfied if the trust can be manifested or proved by any subsequent acknowledgment by the trustee, as by an express declaration or any memorandum to that effect, or by a letter under his hand, or by his answer in chancery or affidavit, or by a recital in a bond or deed, or by a pamphlet written by the trustees; in short, by any writing in which the fiduciary relation between the parties and its terms can be clearly read. The trust thus proved, however late the proof, will relate back to its creation, as where a lease was granted to A., who afterward became a bankrupt, and 
      then executed a declaration of trust in favor of B., the jury having found upon an issue out of chancery, that A.’s name was used in good faith in the bond, as the trustee of B., it was held that the assignees of A. took nothing in the' property. Gardner v. Rowe, 2 S. & S. 346; 5 Russ. 258; Plymouth v. Hickman, 2 Vern. 167; Ambrose v. Ambrose, 1 P. Wms. 322; Nelson v. Dent, 3 Sim. 385; Smith v. Howell, 3 Stockt. 349; Perry on Trusts, 53, sec. 82.
    The principle of these decisions is, that whatever establishes the relation between the parties so far as they are concerned, establishes it with all its consequences as to third persons. On this point, see Hill on Trustees, *56, 57.
    It is the same principle, which, as an exception to the rule, that the answer of a defendant in chancery is not admissible in evidence against a co-defendant, establishes an exception, when the other defendant claims through the party whose answer is offei’ed in evidence. Taylor Ev., see. 684. And even contrary to the rule against receiving admissions of thix’d persons, sti’angers to the suit, it admits exceptions whei'e the issue is substantially upon the mutual rights of such pex-sons at a particular time,, in which cases the practice is to let in such evidence in general, as would be legally admissible in an action betweexx the pai'ties themselves. Thus, in an action against the sheriff, either for not arresting a debtor on mesne pimeess, and making a false return of non est inventus, or for an escape on mesne process, any such acknowledgment of the debt by the debtor as would have been sufficient to have charged him in the original action, will also, as against the sheriff, suppox’t the averment in the declaration, that the party not arrested or so escaping was so indebted. Sloman v. Herne, 2 Esp. 695; Williams v. Bridges, 2 Stark. 42; Rogers v. Jones, 7 B. & C. 89. This exception proceeds on the principle that the shei’iff is put in the place of the debtoi’, as to the ci’editor who sues him for a breach of duty. Coole v. Braham, 3 Ex. R. 185, per Parke, B.; Taylor Ev., sec. 688.
    This doctriue seems to have received the express sanction of this court in the case of Woods v. Dille, 11 Ohio, 456.
    
      Of course, a mere volunteer or person who takes the property without paying a valuable consideration, will hold it charged with all the trusts to which it is subject, whether he had notice or not. It is only necessary to establish the trust against the trustee, and notice, or want of consideration against the purchaser, to entitle the cestui que trust to relief.
    The children of Rebecca Hubbell, therefore, although necessarily substituted for her, by reason of her death and' their rights as her heirs and representatives, were not defending as her heirs, in the sense of this statute, but as claimants under their father. The statute evidently means to exclude the parties to the suit from testifying, only where the title from the ancestor, who is dead, is the cause of the controversy and the principal subject of the litigation, which is not the case here. The witnesses were competent against the original parties to the suit, at the time of its institution, and their depositions were admissible when taken. The statute has reference only to civil actions begun against persons, who, at that time, were defending as heirs or devisees, and not in cases like the present, where, by the accident of death, new parties as legal representatives are substituted, pending the. litigation, unless the testimony has relation to transactions, to which the deceased was personally a party, in which the spirit of the statute would apply. Evidently this is the true test of the application of the rule, limiting and extending it according to the circumstances of the case, according to the reason which introduced it, and the evil for which it was provided as a remedy. That reason was, while introducing parties to a suit to testify in their own behalf, so to qualify it, as to place parties in this respect on the footing of equality, to forbid it to any party, when the adversary, who was a party to the transaction questioned, and who, if alive, cbuld give his version of it, having deceased, has left representatives personally ignorant of the circumstances, and therefore not supposed to be in a situation to explain or contradict the statements of their opponents. Such is not the present case. 'William ITubbell was the real party cognizant of all the facts and personally participating in the transactions brought into controversy. His wife had nothing to do with any of them, and became connected with the title long after all the facts had happened, which gave character to it. To cut off the proof of those facts from the lips of the only witnesses, because they are parties to the controversy, and where their admission can work no possible disadvantage to her heirs, which she, by any personal knowledge on her part, if she had lived, could avert, is to turn the statute into an instrument of injustice by suppressing the evidence of the truth, and that -without any justifying ground in the policy of the law. A litoral construction of the statute would exclude the testimony of all parties to the suit, in civil cases, to contest the validity of a will, because all are claiming either as heirs or devisees; and the question has several times been made in the inferior courts, but the general opinion of the profession, and the uniform practice of the courts, has overruled the objection. Raab’s Estate, 6 Ohio St. 280.
    The exceptions to the rule of exclusion, enumerated in the statute, clearly show its scope and meaning iii accordance with this interpretation.
    Section 313 being an exception out of the general rule of admissibility in favor of parties established by section 310, is to have a strict construction, so that the latter may be liberally applied, according to its broad and true intent, to further the interests of truth and promote justice.
    
      King § Thompson, in reply:
    The code, section 313 (S. & S. 556), then and now in force, is so explicit that “ no party to a civil action shall be allowed to testify by virtue of section 310, in an action where the adverse party . . . is a party claiming or defending as heir or devisee of a deceased person, except,” etc., and it is so obvious that this case is not within either of the specified exceptions, that the admission of their testimoil}7 by the Superior Court was, we submit, a manifest and serious error.
    In support of it, the.court are urged, by a sort of legislation, to add another exception to section 313, making it com-. petent«for parties to testify where the adverse party happens to claim or defend the title of property under a voluntary conveyance. Even this, however, would not avail them. Mrs. Hubbell was not a volunteer. Post-nuptial conveyances, and even executory agreements, are held to be upon good consideration, so that equity will not only support, but enforce them. Wood v. Warden, 20. Ohio, 518; Thomas v. Brown, 10 Ohio St. 247.
    The error is defended, also., by assuming that William M. Ilubbell was the principal defendant, and that his wife’s heirs were merely collateral parties; whereas the petition charged Rebecca C. Hubbell as holding the legal title, under an express trust, and calls upon the court to compel her, as trustee, to convey it to the plaintiff) Eliza Hubbell, for life, and upon her death, to the other plaintiffs in remainder, and such was the decree against her heirs.
    The incidental title by the curtesy, which, at her death, was cast upon William M. Ilubbell, did not alter l¡he case, and therefore was not noticed by any amendment. The trust, if any there was, adhered to the legal title in her heirs, and was so treated by the pleadings, the incidental title of W. M. Ilubbell being left to stand or fall with theirs. They, therefore, were the principal defendants, directly adverse to the plaintiffs, and against them the plaintiffs were permitted to. testify.
    The plaintiff, Eliza Hubbell, we submit, was also incompetent, under section 314 (S. & S. 558), to testify concerning communications between her and her husband, Nathaniel S. Ilubbell, during coverture, even after his death, because, as a feme sole, she had no interest, and would not have been plaintiff or defendant in the action.
    We claim that the judgment should be reversed for error in admitting this testimony, and testimony of the same and other witnesses concerning declarations made by Nathaniel S. Hubbell subsequent to his conveyances to William M. Hubbell, all which were incompetent. Greenleaf’s Evidence, sec. 110; Sidmouth v. Sidmouth, 2 Beavan, 447; Paine v. Doe, 7 Blackford, 485. Also, for error in admitting, en masse, papers alleged to have been in Nathaniel S. Hubbell’s possession (Record, 212-292), including his letters to his counsel in the suit of Jones v. Bonsall, which, with his answer in that suit (Record, 492) were admitted without foundation, or a particle of proof that William M. Hnbbell had ever seen or heard of them, every objection to these depositions, papers, and matters being indiscriminately overruled.
    Consistently with this view, Wm. M. Ilubbell’s deposition could not be taken, because clearly incompetent against the plaintiffs, claiming as the heirs of Nathaniel S. Hnbbell; and because we do not understand that the practice of thrusting into a case incompetent testimony, taken in violation of express prohibitions. of the code, has yet obtained any sanction.
   McIlvaine, J.

The conclusions at which we have arrived in regard to some of the questions raised upon the record, and the consequent return of the case for a new trial upon the facts, render it unnecessary, if not positively objectionable, that we should express an* opinion upon other important questions which have been presented with much labor' and ability by counsel. Without, therefore, undertaking to consider whether or not an express trust can be raised by parol, or unwritten evidence alone, upon a deed of conveyance absolute upon its face, or whether or not the testimony set out in the record sliows a resulting trust in favor of Nathaniel S. Hubbell, Sen., and his heirs, under the deed of June 10, 1846, to his son, William M., we will proceed to state our views as to the competency of the plaintiffs, and of Nathaniel S. Hnbbell, Jr., whose, interest in the action was identical, with that of the plaintiffs, to testify against the heirs of Rebecca C. Hubbell, as to facts which, occurred before the death of their mother.

Section 310 of the code (S. & C. 1035) provides, that “ no person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same as a party or otherwise.” This rule, however, is qualified by section 313, as amended April 15, 1867 (S. & S. 556), so that “ no party to a civil action shall be allowed to testify by virtue of section 310, in any action where the adverse party” claims or defends as heir or devisee of a deceased person to facts which occurred before the death of the decedent or parent, except as provided in the section. The only doubt that has been suggested as arising upon the terms of this rule of exclusion, is as to the relation that must exist between the party disqualified as a witness and the “adverse party,” in respect to either the action itself or to the facts in issue.

On these questions we are entirely satisfied, not only from the light of decided cases (see 13 Ohio St. 263; 17 Ohio St. 640, and 18 Ohio St. 73), but upon the true construction of the statute, that both the party disqualified and the adverse party referred to must be parties to the record, and adversely interested in the determination of the issues of fact, and they must be so related to the action and the issues at the time of trial, but it matters not whether they stand upon the same side or opposite sides of the record.

In the practical application of this rule of exclusion, it is scarcely necessary to say, yet it must be distinctly kept in mind, that it has nothing to do with the question of competency or admissibility of the testimony, but relates solely to the competency of the person or party as a witness.

How, then, stands this ease? The heirs of Rebecca C. Hubbell, parties to the record, claim the absolute ownership of the property in controversy, by descent from their mother, and have joined issue with the plaintiffs (and for the purpose of claiming the protection of this rule of ex-elusion, with Nathaniel S. Hubbell, Jr., also), by denying that the estate which passed by the deed of Juno 10, 1846, from Nathaniel S. Hubbell, Sen., to William M. Hubbell, was a trust estate.

Ilonce, it was the interest of the plaintiffs to establish the trust and fasten it upon this property, to which determination of the issue, the interest of the heirs of Rebecca C. Hubbell was adverse. Now, the testimony of the parties objected to, tended to prove the trust, and (waiving objections under the statute of frauds) it was clearly admissible and competent for that purpose. Nevertheless the parties objected to were incompetent as witnesses against the defendants who claimed as heirs, in so far as their testimony related to facts which occurred before the death of Rebecca C. Hubbell.

But it is claimed that the foregoing application of the rule, under section 313, in favor of the heirs of Rebecca C. Hubbell, is contrary to the legislative intent, because, as it is said in argument, “ The only fact material to be shown in respect to them was, that their mother was a volunteer, the conveyances from William Hubbell to Rice and from Rice to her being without consideration. That fact being proven, Or admitted, as it was, they had no rights to the property, except such as their father could give by a voluntary conveyance ; and it only remained to make out the case against him to entitle the plaintiffs to the relief demanded. The ‘ adverse parly ’ referred to in the statute, in the present case, was William M. Hubbell; and on his behalf, and as against him, no objection could be made to the witnesses. The children of his wife, although necessary parties, were only collaterally interested, as claiming a title dependent on his, which, they being volunteers, necessarily fell or stood according to the fate of his. The fact that their title was no better than his, depended on the single fact that their mother paid no consideration for the conveyance, as was apparent, indeed, from the nature and face of the transaction, Rice being used simply as a medium by which the husband should convey to the wife, and the witnesses objected to were not called to prove that; so that the witnesses being compétent to establish the nature of his title, the effect of the testimony, by operating on that of the heirs of his wife, through him, was necessary matter of law. To sustain tbe objection would be to protect William M. Ilnbbell beyond and contrary to the intent of the statute, the whole object of which evidently is to protect heirs and devisees from claims which it supposes their ancestor, if alive, would have it in his power to defeat. But hero the very party from and under whom they claim is alive and a party defendant, against whom also relief is sought. So far from being allowed to interpose to shield him, on their account, from evidence to which he can make no legal objection, the fact that it is admissible against him deprives them of any claim to object to it under the statute. The equity of the plaintiffs having been established against William Hubbell, the finding'is conclusive against all claiming under or through him not protected by an independent and substantial equity of their own ; so that, if he had been declared trustee for the plaintiffs in a separate proceeding, the finding and judgment could have been used in a subsequent action against the children of his wife as an estoppel, conclusively establishing the nature of the title acquired from him, at the date of its acquisition, by them, and as the foundation for specific relief as against them, entitling the plaintiffs to a reconveyance, unless the children, as holders of the legal title, could successfully defend upon the ground of a superior equity, such as purchasers for value without notice.”

The fault of this argument is found mainly in the propositions that the heirs of Rebecca C. Hubbell were only collaterally interested in the issue of trust or no trust, and that William M. Hubbell, their father, was “ the adverse party ” referred to in the statute. These heirs were confessedly the holders of the legal title, by descent from their mother. And it must be conceded that the whole estate, wdiatever its extent or character, which vested in their lather by the deed of 1846, was transferred by deeds of conveyance to their mother, and at her death passed to them. It it be conceded, for the sake of this question, that the transfer from the father to the mother was without consideration, then it follows that, if the estate granted to him was in trust, her legal representatives took as trustees of the same trust; and, if the estate in him was an absolute fee, then they hold an absolute and indefeasible inheritance. Hence, whatever may have been the nature of the title or estate of the father, it had wholly divested, and had passed to the legal representatives of his wife; and whether the estate cast upon her heirs be such as is admitted by defendants in error, or such as is claimed by them, it is clear the father had no direct interest in the issue, except to protect his newly acquired estale by the curtesy.

It is true, that the plaintiffs in their petition pray for an account as between William M. Hubbell and Eliza Hub-bell, for the rents and profits received by him as her trustee, and it may be that to the extent the issue between said William and Eliza, on her claim for an account, was presented in the case, the heirs of Rebecca were only collaterally interested. It may be added, however, that to such issue they were not necessary parties.

But the main object of the action was to fasten upon the land itself, in the hands of the owners of the legal title, the character of a trust estate, and. to subject it to the purposes of the trust; and to all issues touching the status of the property, and the relation thereto of the parties claiming an interest in it, William M. Hubbell, who, as the petition itself shows, had parted with his title, and was estopped by his deed from reasserting any interest in it, was not a necessary party or interested in the suit, except only as to his new estate by the curtesy. And in his new character as tenant for life by the curtesy, he was in no sense such a representative of the tenants in fee, or in such privity of estate with them, that a judgment or decree affecting his estate would be conclusive upon them and their estate. If, indeed, such judgment or decree could, in any event, be used in evidence against them, and it wrere shown that it was rendered upon the testimony of witnesses who would have been incompetent to testify as against them, it would be entitled to but little if any weight.

Nor did the appearance of William M. Hubbell, as a co-defendant in the action, remove the incompetency of witnesses, as against the tenants in fee, who would have been clearly incompetent to testify against them, had he not been such party.

Nor could the act or admission of William M. Hubbell,. made after the transfer of all his estate in the premises to his wife, in any way affect the title of his assignee, or of her heirs. In so holding, however, we do not deny that his-subsequent declaration of the trust in writing (if a writing-for that purpose be necessary), would take the ease out. of the operation of the statute of frauds. But such declaration could not be used against his assignee to prove the existence of the trust. The theory in such a case seems to-be, that if the trust can be proven aliunde, and such declaration be used only for the purpose of satisfying the terms-of the statute, it can not be said that the assignee is deprived of any interest or estate by virtue of the act of the assignor-done after the conveyance, for the reason, that it is made to-appear by the proof aliunde that no beneficial interest -or estate passed by the assignment. But the logic of such a-case will not apply in this case, for the reason that the incompetency of a party as a witness against the adverse-party claiming as an heir, does not depend upon the fact that, a beneficial estate has been cast. By the plain meaning of section 313, the incompetency arises where the adverse party claims an inheritance or defends as an “ heir.”

• Another question of some difficulty arises. William M.. Hubbell, the first holder of the alleged trust estate, was co-defendant with the heirs of Rebecca, and claimed an interest in the property as tenant by the curtesy. His claim depended on the same issu'e of trust or no trust, and it can not be said of him that he defended as an “ heir.” The-question then is, were the adverse parties competent to testify against him? If the action had been against him alone, clearly they would have been competent; but the-effect of the joinder is the question. My mind inclines to-the opinion that the incompetency of the parties as witnesses was thereby extended to all the issues in the case^ and as to all the adverse parties. The terras of the section .are, “ No party to a civil action shall be allowed to testify, by virtue of section 310, in any action where the adverse party is .... a 'party claiming or defending as heir,” ■etc. But waiving further discussion as to the construction of this statute, the case must yield to the better opinion of my brethren (which leads to the same- result in this case), who hold the true rule to be, that where there are two or more persons, plaintiffs or defendants, claiming several interests under the same title or alleged state of facts, and the adverse party is a competent witness as against one or more of them, and incompetent, under section 313 of the code, as against the others, and the case is one in which separate judgments may be rendered, the testimony •of such party should be received in evidence, but used and ■considered only as against those as to whom the witness was competent; and the court should render such judgment or judgments in the action as would have been, warranted by the evidence, in case there had been separate .actions — the evidence being considered in one of such actions, and not in the other.

In applying the principles here laid down, we are of •opinion that there is manifest error in the record before us: That the Superior Court, at general term, erred in affirming the judgment rendered at special term, and that the court .at special term erred in admitting the testimony of the plaintiff aud Nathaniel S. Hubbell. Jr., agaiustthe heirs of Rebecca C. Hubbell, as to facts which occurred before the ■death of their ancestor, and in overruling the motion of ■said defendants for a new trial, upon the ground that the findings and judgment of the court against said heirs were against the law and the evidence. And we are of opinion 'that the judgment against William M. Hubbell should also be reversed, for the reason that it fairly appears upon the record, that the measure of relief granted as against him was determined and controlled by the findings of the court, •as against his co-defendants, and therefore ought not, in <equity, to stand as a final determination of the rights of the parties under the issues joined between the plaintiff below and the said William M. Hubbell.

Judgment of affirmance and original judgment reversed, and cause remanded for further proceedings.  