
    SWISHER’S LESSEE v. WILLIAMS’ HEIRS.
    Fraud. — deed—grantor witness — 'Sunday—breach of faith.
    Fraud may be proven to vitiate a deed; but a mere mistake with which the grantor had no agency will have no effect.
    The plaintiff’s grantor with covenant of warranty, is not a witness ,to sustain the title of his grantee.
    The grantor is a competent witness for those claiming against his title, to facts independent of the deed.
    A grantor of a quit claim deed is a competent witness.
    That a deed was executed on Sunday, will not avail the grantor to avoid it— that both parties violated the Sabbath, is no reason why either should commit the additional sin of violating their faith pledged on that day.
    Ejectment. The plaintiff -deduced bis -title under a patent to Bogert’s heirs — a decree of the Court of Common Pleas for a portion of the land to Mackay, and a deed from Mackay to the lessor of the plaintiff. It was proven that the defendants were in possession of the land covered by the deed except eleven poles on the south side, and that their deed covers the land they have in possession.
    Mackay, the warrantor of the plaintiff,
    was called by him as a witness. The defendant objected his incompeteney.
    
      Doane, for the plaintiff,
    called Mackay, the defendant’s grantor, and offered to prove that the deed was obtained by fraud, and falsely representing it only for the dower interest, and that the deed was executed on Sunday.
   BY THE COURT.

The witness is called to sustain -his own title, and is incompetent.

The .defence then offered a deed from Mackay, Swisher and wife, and others to Williams for the same land.

BY THE COURT. The objection that the deed was executed on Sunday will not avail you. Both parties partook of the sin of violating the Sabbath, and the law does not require of ns to enable either party to add to the sin, by breaking the faith pledged on that day, and commit a fraud, out of assumed regard for the Sabbath-day. It is competent to prove the deed obtained by fraud and misrepresentation, as that makes it void: but the mere intention on the part of the grantor to make a different deed, is not such fraud, unless the 75.5] "‘grantor was deceived by the grantee. The grantor of this deed is a competent witness for the plaintiff, as he does not claim under it. This grantor is competent on general grounds, as his deed is only a quit claim.

Verdict for defendant.

[Deed executed on Sunday, cited in diss. op. Sellers v. Dugan, 18 O. 489, 497. Commented on and approved; Bloom v. Richards, 2 O. S. 387, 405.]  