
    Charles v. Cones and Others.
    
      A. and B. were, respectively, Hie owners of adjoining tracts of land, which they held from a common grantor, 0. Suit by A. against B. to recover possession of a part of the land, claimed to be embraced in G.’s deed to him, A., and which B. was alleged to occupy without right. B. filed a counter claim, making the heirs of G. parties, alleging a mistake in the description contained in his deed, and asking to have the same corrected, so as to include the land in controversjr, or that a proper rebatement might be made from the purchase money yet owing by him to the representatives of 0. On the trial, D., who was the husband of one of the heirs of (7., and with his said wife was made a party to the counter claim, was offered b3r A. as a witness, to prove that there was no mistake in the deed of B., but that the same embraced all the land purchased by him.
    
      Held, that if B. really bought the land in controversy, under such circumstances as would entitle him to have the mistake in the deed .corrected as against A., and those claiming under him, and as against the heirs of 0., he would he entitled to such relief in this suit, and the heirs of G. might be properly made parties for that purpose; but if it should be found that he was not entitled to such relief as against A., and those claiming under him, although he might be entitled to relief by way of rebatement of the purchase money, as against the heirs of G., it may be doubted whether the latter relief could be obtained in this suit.
    
      Tuesday, June 18.
    
      Held, also, that the question of the rebatement of the purchase money, as against the heirs of G., was one in which A. was in no manner interested, and which could in no manner affect him; but perhaps, under § § 22 and 368 of the code, the heirs of G. might be deemed proper parties defendant, and if so, probably, in case the facts warranted it, B. would be entitled to relief against them, in this suit.
    
      Held, also, that D. was a competent witness as between A. and B., although as between B. and the heirs of G, he might not have been competent.
    APPEAL from the Marion Circuit Court.
   Worden, J.

This was an action by Gones against Charles, to recover possession of a part of lot number seventeen, in Dtalce and Mayhevds addition to the city of Indianapolis.

The lot in controversy is a part of the south half of the southwest quarter of section thirty-five, in township sixteen, north, of range three, east. It runs to the north line of the south half of the quarter section of land mentioned, excepting an intervening alley of fifteen feet in width. Mayhew, under whom Gones claims title, purchased the south half of - the quarter section of a commissioner appointed by the Marion Circuit'Court, to sell the real estate of Mathaniel West, Sr., deceased. In like manner, Charles and Shapley purchased the north half of the quarter section, excepting a piece that had been sold to one Yount, the whole quarter •section having been the property of West.

Charles answered by denial; and also filed a counter claim, making the heirs and devisees of West parties, and alleging, in substance, that he and Shapley, in making their purchase, not knowing precisely where the line would run, dividing the quarter section into equal halves, were not governed by such line, but bought the property on which a mill and certain other buildings pertaining thereto were situated, and which extended so far south as to include forty feet of the lot in controversy; that a mistake was made in their deed, in describing the land purchased by them as the north hálf of the quarter section, when it should have been so described as to embrace the property actually purchased; that a portion Purc^iase mohey remained unpaid. Prayer, that the mistake may be corrected, and the defendant protected, &c., or that a proper rebatement may be made of - the purchase money yet due. '

Issues were formed, and the cause tried by a jury. Yerdict and judgment for the plaintiff.

Charles appeals, and relies upon but one point for a reversal of the judgment, which is the admission of the testimony of a witness claimed to be incompetent.

Henry W. Ellsworth, and Mary Ehis wife, were made defendants to the counter claim, the said Mary E. being, as the bill of exceptions states, a daughter, and one of the heirs at law, of said West, deceased. Henry W. was introduced as a witness for the plaintiff, Cones, and testified, over the objection of Charles, to facts going to show that Charles and Shapley only purchased the land described in their deed, and not any part of the south half of the quarter section.

It is claimed that Ellsworth was incompetent to testify to these facts. If Charles and Shapley really bought the land, as claimed, embracing a part of the lot in controversy, under such circumstances as would entitle Charles (he having purchased Shapley's interest) to have the mistake in the deed corrected as against Mayhew, and those claiming under him, and as against the heirs of West, he would be entitled to such relief in this suit, and the heirs of West might be properly made parties for such purpose. But if it should be found that he was not entitled to such relief as against Mayhew, and those claiming under him, although he might be entitled to relief by way of a rebatement of the purchase money, as against the heirs of West, it may well be doubted .whether the latter relief could be obtained in this suit. This latter question, between Charles and the heirs of West, was one in which Cones had no interest, and which could in no manner affect him. “ The matter of counter claim must arise out of, or be connected with, the plaintiff’s cause of action, and must be such as constitutes a cause of action (at common law, legal or equitable,) in favor of the defendant, against the plaintiff, of plaintiffs.” Perk. Prac. p. 228. Perhaps, how ever, under the provisions of § § 22 and 368 of the code, Wests heirs might be deemed proper parties defendant, and if so, probably, in case the facts warranted it, Gharles would be entitled to relief against them in this suit. Vide Swift v. Ellsworth, 10 Ind. 205.

John Coburn, James Morrison and C. A. Ray, for the appellant.

Lucian Barbour and J. D. Howland, for the appellees.

We now come more immediately to the question oí the competency of Ellsworth as a witness.

Interest no longer disqualifies. Code, §'238. If he was incompetent, it was because he was a party to the record. If he was a party adverse to Cones, the latter had a right to examine him as any other witness. C6de,-_§ '295. If, however, he be deemed to occupy the position of a co-plaintiff with Cones, it is necessary to inquire whether he was jointly interested or liable with him, in respect to the .matter about which he testified, and concerning which a joint and not a separate judgment should be rendered.

In our opinion, no such joint interest existed as would exclude the witness. The title to all the land had passed out of the heirs of West. The question was simply between the purchasers of the respective portions of the land. No joint judgment could be rendered against Cones and the heirs of West. As between Charles and the heirs, of West, the witness might not have been competent, but he was not offered by such heirs. As between Cones and Charles, he was competent, as is established by the following authorities: Moore v. Allen, 5 Ind. 521; Johnson v. Cook, 1 id. 240; Muir y. Gibson, 8 id. 187; Draper v. Vanhorn, 12 id. 352; Hubbell v. Woolf, 15 id. 204.

We have not thought it necessary to examine whether, in any case, a party to the record, who is made such merely on account of his wife’s interest in the subject of controversy, would thereby bo excluded as a witness.

Per Curiam.

The judgment is affirmed, with costs.  