
    Williams v. Harris.
    [68 South. 465.]
    1. Witnesses. Competency. Cure of incompetency.
    
    Where a husband joined his wife in a conveyance of her property, he cannot, in an action against the heirs of the grantee who bad died in the meantime, testify in his own behalf that the grantee’s holding to a certain line was merely permissive.
    2. Witnesses. Compentency. Cure of incompetency.
    
    Where a husband and wife conveyed land of the wife to defendant’s ancestor, and the grantee entered and held possession, and after the death of both the wife and the grantee, the heirs' of the wife, one of whom was the husband, instituted an action against the heirs of the grantee to recover land of which it was ■ claimed the grantee, had only - permissive use. In such case where the testimony of the husband of the grantor to that effect was excluded because of his incompetency, his subsequent release of any claims to the land could not, under the present code, thereafter make him competent.
    Appeal from tbe circuit court of Lee county.
    Hon. Claude Clayton, Judge.
    
      W. I). Anderson and C. P. Long, for appellant.
    
      Boggan <& Leake, for'appellee.
   Stevens, J.,

delivered tbe opinion of tbe court.

In April, 1898, Emma Grivan, being tbe owner of a part of lot 2, block 18, of a certain survey of tbe town of Tupelo, conveyed to one Trice Williams, by deed properly executed by ber and ber husband Jesse Grivan, a fractional part of said lot described as “a strip fifty feet off tbe south end of said lot No. 2, running tbe entire width of said lot from east to west,” according to tbe proper survey. Tbe grantee, Trice Williams and his wife Sallie, entered into possession of the fifty-foot strip, and used and occupied the same as a home until the death of Trice Williams in November, 1906, and thereafter .the widow Sallie Williams, appellant here, remained in possession as the sole heir at law of Trice Williams, deceased. In taking possession and improving the land purchased by them, Williams and his wife took actual possession of a part of lot 2 aforesaid immediately north of their'fifty-foot strip not expressly embraced within the call or description in their deed, and continued in possession of this strip, along with and presumably as a part of the fifty-foot strip, and claimed it as a part of the land purchased by them from Emma Givan. In September, 1898, Emma Givan, the grantor in the deed, died, leaving as her heirs her husband, Jesse, and her daughter and only child, Victoria Harris, appellee herein. It appears from the evidence that Trice Williams constructed a fence dividing the lands then being improved by*him and the premises of his grantor, that this fence was in fact placed too far north on the land belonging to Emma Givan, and that actual possession of the disputed strip continued in Trice Williams until his death and is now in his widow. The evidence is conflicting as to the exact time the partition fence was built, and as to the understanding of the adjacent owners about the construction of this fence at the time it was built. This action was one in ejectment by Jesse Givan and Victoria Harris as tenants in common and sole heirs of Emma Givan, deceased, against Sallie Williams, the sole heir of Trice Williams, deceased, for the recovery of possession of the strip of ground described in the declaration with some uncertainty as follows:

“Commencing at the southeast corner of lot No. 2, in block No. 18, in the Triplett, Allen, West & Co. addition to the town of Tupelo, and run north with the east line of said lot fifty feet for a beginning point, thence west with the north line of Sallie Williams’ lot to King street, thence with the west boundary of said lot and the line of said street in a northwest direction to a fence, thence due east from the end of said fence to the east line of said lot, thence south with the east line of said lot sixty feet more or less to the beginning point, same being that portion of said lot now occupied by Sallie Williams north of the north boundary of the above described fractional part thereof, and deeded to Trice Williams as shown by Deed Record Book 82, page 540, of Lee county, Mississippi. ’ ’

On the trial of the case Jesse Grivan was introduced as a witness for himself and coplaintiff, and after giving his evidence in chief, the court sustained a motion to exclude his testimony because the witness was incompetent to testify in support of „Ms claim against the estate of Trice Williams, deceased. After further testimony by plaintiffs and defendant, and after the defendant had rested her case, plaintiffs made the following motion, which was b}^ the court sustained, to wit:

“The plaintiff here dismisses as to this plaintiff, Jesse Grivan, who further claims no interest in this suit whatever, or the result of the suit.”

The witness was thereupon' reintroduced in rebuttal of the case of adverse possession apparently made out by the defendant, and over objections of defendant was allowed to give evidence to the effect that the dividing fence was built by agreement of all parties, and that the possession of Trice Williams in his lifetime was only permissive, and that there was an oral agreement by Trice Williams to move the fence when demand was made upon him so to do. There was verdict for the plaintiff Victoria Harris, and a judgment based upon this verdict of the jury was entered in favor of Victoria Harris that she recover an undivided one-half interest in the land, and that she be put in possession of said half interest along with the defendant, Sallie Williams. From this judgment the defendant appeals to this court, and assigns as error, amongst others complained of, that the court erred in allowing Jesse Givan to dismiss as to himself and then testify for his coplaintiff, because there was “no proof of the identity of the land sought to be recovered,” and because the judgment itself is uncertain, contains a void description and is not supported by the evidence.

Jesse Givan was an incompetent witness in his own behalf. The very fact attempted to be established by this witness, to wit, the permissive holding of the land by defendant, was the same kind of testimony condemned in the ejectment suit of Rothschild v. Hatch, 54 Miss. 554. In this case it was also held that one who had made a deed of gift for his interest in an alleged claim was a competent witness; but the legislature, in 1878, after the rendition of this opinion, enlarged the statute so as to disqualify a witness who had assigned his claim since the death of the deceased. This amendment has been brought forward into our present Code and is now in force. We do not think it was permissible, therefore, for the trial court to allow Jesse Givan to enter a release in the course of the trial, and thereby restore his competency as a witness for his coplaintiff, Victoria Harris. The purpose of the statute is to continue the disqualification of an incompetent witness even though he has sold or given away his claim. And in the instant case Jesse Givan and his coplaintiff claimed jointly as tenants in common, they inherited from the same person, assumed the burden of this litigation jointly, and are members of the same family. To permit one coplaintiff under such circumstances to commit himself on the alleged facts in the presence of the jury, to see his testimony excluded because of his incompetency as a witness, and then to be reintroduced as a witness for his coadventurer in the suit, would be allowing that to be done indirectly which the statute says cannot be done directly. It was error, therefore, to admit the testimony of Jesse Grivan, and without his testimony plaintiff did not suf~* ficiently rehut the affirmative defense of adverse possession. Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, and authorities there listed.

No map of any kind showing the size or dimensions of lot 2 was introduced in evidence, hut judging from the statements of Jesse Grivan and the admissions and diagrams of attorneys, it appears that the description of the land in the judgment entered is void for uncertainty, and that this judgment is not supported by the competent testimony in this record. It appears to us that the judgment entered takes away from appellant a portion of the fifty feet admittedly owned by her, even though the description, as contained in the judgment, be sufficiently definite to describe any land at all.

In view of the foregoing it follows that the judgment of the lower court should be set aside, and that this cause should be and is hereby reversed and remanded.

Reversed and remanded.  