
    William M. Brown, Appl’t, v. Frank A. Burgett, Resp’t.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Evidence—Transaction with deceased person—Code Civ. Pro., § 829-
    In an action to foreclose an alleged equitable lien for unpaid purchase-money of land, sold to plaintiff’s father, since deceased, the contract for which was assigned to defendant, the defense was payment, and defendant-testified to admissions made by plaintiff that he had received payment by allowance of the amount on the sale of a contract by defendant’s father to plaintiff. Held, that this did not permit testimony to be given by plaintiff to the effect that he did not have the transaction with defendant’s father in reference to the consideration for the transfer of the contract, which he was said to have admitted.
    Appeal from a j udgment entered on the report of a referee.
    
      Wm. H. Henderson, for app’lt; A. C. Wade, for resp’t.
   Dwight, P. J.

The action was in equity to foreclose the-plaintiff’s alleged lien for the unpaid purchase money of a certain four acres of land, under a contract of purchase and sale made by the plaintiff with Richard Burgett, since deceased, the father of the defendant, who had transferred his interest in such contract to-the defendant, the latter being in possession of the land under such agreement; and the relief demanded was that the defendant, be barred and foreclosed of all right, title and equity of redemption in such land, and that the plaintiff recover possession thereof. The answer of the defendant averred full payment and satisfaction of the purchase price fixed by the agreement, viz.: the sum of $250, by Richard Burgett, the father, in his life time, and demanded, by way of counterclaim, judgment for the specific performance of such contract of sale by a proper deed to be executed by the plaintiff to the defendant.

The making of the verbal contract by the plaintiff and Richard Burgett, the amount of the purchase price fixed thereby at $250, and the transfer of- all his interest therein by Richard Burgett to the defendant were established by the pleadings; the only issue of fact joined by the pleadings, and litigated on the trial, was that of payment of the purchase price. The referee found on that issue in favor of the defendant upon evidence which fully sustains the finding, and awarded to the defendant the affirmative relief demanded in the answer, and judgment accordingly was entered,, from which this appeal is taken.

There is no contention here but that the judgment was warranted by the referee’s finding on the issue of payment, but the correctness of that finding is challenged on the ground oí^ exceptions by the plaintiff to rulings of the referee in the admission and rejection of evidence bearing upon that question.

The defendant’s theory in respect to the payment of the §250 was to the effect that his father had bought a piece of timber land of one Wright on. con tract, and sold the contract to the plaintiff for $500, of which $250 was or was to be paid in cash and the remaining $250 was applied in payment of the contract price of the four acres in question. In support of this theory the defendant testified to a conversation with the plaintiff shortly after he, the defendant, had bought his father’s interest in the property, in which the plaintiff admitted that he had sold the land to the defendant’s father, and had had his pay for it, and that he understood that his father had sold the contract to the defendant, and promised that he would get around in a few days and give the latter a deed for it. He further testified: “ He told me, this same day, that my father had bought a piece of land over in Bed House of Frederick Wright, all of which I knew, and had turned his contract over to him, Brown. Father had bought this land on a contract; it was timber land, and he gave my father $250 and the price of the land in question, which was called $250, for the timber land contract, which they called $500. I knew of my father’s purchase of the timber land and that the plaintiff after-wards took it and went into possession of it.” On his cross-examination the defendant gave the following version of the same conversation: “ In the first conversation the plaintiff said father had a contract for it (the Wright lot) of Wright, but had never paid anything on it and that he had bought the contract of father for $500 and was to give father the land in question at $250 and pay $250 besides,” and the plaintiff when he undertakes to contradict this evidence testifies: “ I never told the defendant nor any one that I had taken the Wright contract from Bichard Burgett at $500, and was to give him this four acre piece at $250, and give him $250 more in payment for it.” Also on the cross-examination of the defendant he testifies: “I knew nothing about father having secured the plaintiff only by what the plaintiff told me in that conversation and a previous one.”

It then plainly appears that the whole of the testimony of the defendant, first above quoted, down to the words: “ I knew of my father’s purchase of the timber land,” etc., was a recital of what the plaintiff told him in the conversation testified to by him. But when the plaintiff had the case, in rebuttal, he offered his own testimony to the effect that he never did, in fact, have the transaction with the deceased Bichard Burgett in reference to the consideration for the transfer of the Wright contract, which he was said to have admitted.

_ The testimony so offered was objected to by the defendant as forbidden by section 829 of the Code, and was excluded by the referee. The plaintiff’s exception to that ruling is insisted upon, on the argument here, on the assumption that the defendant had testified concerning the same transaction and so had opened the door to the testimony of the plaintiff in respect thereto. The argument is already answered by showing that the defendant had not testified to the transaction itself, but only to the plaintiff’s admission as to what the transaction was. The fact, testified to by the defendant, that the plaintiff took a transfer of the Wright contract from his father was not in dispute; the plaintiff himself testified to it and produced the contract on the trial; the fact in dispute was whether the consideration of the transfer included payment for the four acres in question.

Another exception strongly urged by the appellant here points to alleged error in the exclusion of the plaintiff’s testimony concerning a conversation which he says he had with the deceased Richard Burgett in the fall of 1876. The admissibility of this testimony is also urged on the ground that it had been rendered competent by the fact that the defendant had already given his version of the same conversation. The difficulty with the offer is that there was nothing to show that it was the same conversation to which the testimony of the defendant relates. On the contrary, the conversation referred to in the offer was one which the plaintiff says was had with Richard Burgett, alone, a short time before any deed of the four acres had been made, and in which the plaintiff promised soon to make a deed to Richard. Whereas the conversation testified to by the defendant was one had with him and his father and was after the time when, as the plaintiff said, he had made out the deed to Richard by mistake, and would have it rectified. Moreover, the plaintiff was permitted to testify that he never had the conversation with Richard in presence of the defendant substantially as testified to by the latter.

There is no other exception to rulings on the trial which seems to require discussion. The evidence upon the only fact in issue between the parties, viz.: that of payment of the purchase price of the land in question, though it consists chiefly of admissions of the plaintiff, was ample to sustain the finding of the referee in that respect; and no further question is made on this appeal.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.  