
    Osborn’s Adm’x v. Cummings.
    The true test of the competency o/ a witness to whom objection is made on account of interest is, will he either gain or lose by the direct legal operation or effect of the judgment, or will the record be’legal evidence either for or aerainst him in some other action.
    A subsequent purchaser of real enlate bought-with full knowledge of the outstanding demand for the purchase-moneyJhUU 1 lmt in an action by the origim.l vendor against the original vendee for the purchase-money, wherein the vendor claimed the enforcement of the vendor's lien against the property, the subsequent purchaser was not a competent witness for the detendaut to prove payment and set oiF.
    “Whether a person could not, under such, circumstances, balance or remove liis interests and become a competent witness — "quero?
    
      Appeal from Guadalupe. This snit was brought by tiie appellant to recover the purchase-money of a house and lot in tiie town of Seguin'. The plaintiff, in her petition, claimed a lieu on tire house and lot for the purchase-money, prayed for judgment for the debt, and that the Hen should be enforced. The main defense relied on was that the debt had been paid in the life-time of the plaintiff's intestate by various payments and set-offs existing before his death. To prove these set-oil's and payments, or part of them, Mr. .Neill, tiie counsel for tiie. defendant, was ottered as a,witness, and although objected to by tiie plaintiff, on tiie ground of incompeleuoy from interest in tiie result of the suit, was admitted by the. court to give evidence, to which tiie plaintiff excepted, and tiie presiding judge signed and sealed the exception.
    The nature and extent of the interest of the witness will lie seen by reciting a part of tlio bill of exceptions and referring it to tiie plaintiff’s petition: “ Witness admitted that lie had become the purchaser of the property ([escribed “in tiie plaintiff’s petition, being tiie house and town lot for which the note “sued was given as part consideration thereof, and that the said purchase was “ made by him with full knowledge, of the outstanding demand for the purehase- “ money.” On tiie disco very' of his interest, lie was objected to as an incompetent witness, hut tiie objection was overruled, and he was permitted to give evidence going- to prove that tiie purchase-money had been paid.
    
      Hancock, for appellant.
    The judge erred in permitting A. Neill to testify as a witness to the several items referred to by him in his testimony, after it appeared that he had become, the purchaser of (.lie house and lot for the purchase-money of which tiie note sued on was given, with full knowledge of the fact that the purchase-money was unpaid. The vendor of land lias'alien on tiie land for the amount of the purchase-money, not only against the vendor liimself, hut also against all subsequent purchasers having notice that the purchase-money remains unpaid. (2 Story Eq., 462, 463, and note 4; 1 Johns. Ch. R., 308; 4 Kent. Com., 151, 152, 153; 15 Ves., 329., 337, 339, 342, 350; Briscoe v. Bronaugh, 1 Tex. R., 326.) This makes Ills interest as immediate and direct in the result of the snit as though he had been the actual defendant.
    
      Keifl, for appellee.
    This was not an action in chancery to stay the defendant, Cummings, from disposing of the estate set forth, aiid the purchase of the property by (lie witness, A. Nedl, either before or after suit commenced upon tiie note, did not render him an incompetent witness. But it even appears that lie, the, witness, knew that the debt was paid, (see. his evidence and the statement of facts;) so that the case of Briscoe r, Bronaugh does not apply. If it was error to allow the evidence of the witness Neill,‘still the same fact, to wit, payment, is as fully proved by both Hunter and Day ; which was sufficient to justify the verdict, even if tiie other evidence be ruled out.
   Lipscomb, J.

On the subject of competency of witnesses there lias been a great contrariety of decision. It is, however, believed to be a rule that a witness having an interest in (lie event of the suit is not competent to testify or give evidence that would promote his own interest. The. interest must be direct and certain and not contingent. The remote possibility is not sufficient, But if the interest is certain, it. is not material how small it may be. The true test for ascertaining tiie. interest of a witness, as laid down by a distinguished writer on evidence, is “that lie will either gain or lose by the direct legal “ operation or effect of the. judgment, or that the. record will be legal evidence “for or against him in some oilier action.” (1 Grecnl. Ev., see. 390.)

Let ns apply this test to the question under consideration. The witness acknowledges that lie is a purchaser of the lot sold by tiie plaintiff’s intestate; that lie purchased with a full knowledge of tiie outstanding demand for the purchase-money ; and in this suit, a lieu is set up by tiie plaintiff on the property so purchased by witness, and the witness is offered to prove the payment of th(> purchase-money, and consequently to oxfingui-.h the lien. In the case of Briscoe v. Bronaugh (1 Tex. R., 320) it was ruled hy Ihe court that tlie vendor has a lien on tlie property sold for tlie price for which it was sold; that the Tendee holds in trust for the vendor until the purchase-money is paid; and this trust, attaches to tlie land or tiling sold, and follows it into the hands of subsequent purchasers with notice. 'The witness, then, being' the subsequent purchaser with notice, has a direct interest in the judgment that would be, rendered, as, hy proving tlie payment of tlie purchase-money, he extinguishes tlie lien. We do not say that a witness, under such eireunislancos, could not balance or remove his interest and be made it competent witness, but wo do say that, as his interest is disclosed in the bill of exceptions, it is clear that lie was incompetent, and ought to have been rejected.

There were objections taken to tlie set-oils offered in evidence, hut wo are not sure Unit we correctly understand how they were presented, such is the obscurity of the record; and therefore, as the caso will he remanded, we decline passing "on the objections. On the first ground the judgment is reversed and. remanded for a new trial.

Judgment reversed.  