#### J. M. REECE v. WORTH WOODS.

(Filed 24 December, 1920.)

1. Evidence — Deceased Persons — Statutes.

Tbe intent and meaning of Rev., 1631, is to prevent a party to a suit from testifying as to a transaction against tbe estate or interest of tbe other party, when tbe latter is dead and unable to testify in bis own behalf.

2. Same — Deeds and Conveyances — Delivery—Husband and Wife.

Where tbe title to lands in dispute depends upon whether tbe deed to a party bad been surreptitiously taken from tbe grantor and wife, under whom be claims, and to be delivered only when a certain part of its consideration bad been performed, and bad bad tbe same wrongfully registered, it is competent for tbe wife, after tbe death of her husband, to testify to tbe facts of its nondelivery, tbe defendant, tbe grantee in the deed being alive and present, and capable of testifying in bis own behalf, and such not being within tbe intent and meaning of our statute on tbe subject, Rev., 1631.

S. Same — Probate Officers — Corroborative—Substantive—Res Gestae.

Where there is evidence that a grantee in a deed from husband and wife, surreptitiously took it from tbe feme grantor, when it was being held by her pending tbe performance of condition made a part of tbe consideration, in an action involving tbe validity of this deed upon tbe ground stated, it is competent for tbe wife, after tbe death of her husband, to give evidence as to the facts; and also for tbe probate officer to testify as to declaration of tbe alleged grantors made at tbe time tbe deed was acknowledged before him as to their intent and purpose in making such acknowledgment, such declaration being competent as accompanying an essential fact in tbe res gestae.

Civil aotioN, tried before Bryson, J., and a jury, at Special Term, 1920, of Cheroxee.

The purpose of action is chiefly to have declared void and set aside a deed from W. L. F. Woods and wife to Worth Woods on the ground that said deed, though appearing on the registration book, was never in fact delivered. There are also allegations in the complaint that the *632plaintiff being tbe real owner and in possession of the land, the defendant has wrongfully committed trespass thereon to plaintiff’s damage. At the close of the testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

J. N. Moody for plaintiff.

Witherspoon & Witherspoon for defendant.

Hoke, J.

On the trial it appeared that plaintiff is in possession of the land in question claiming to own same under a deed from W. L. F. "Woods and wife, Laura, dated 22 February, 1919, duly proven and registered said deed containing a stipulation by way of condition subsequent that the grantee would maintain said grantors during their lives, and on their deaths, see that they were properly bui’ied, etc. It also further appeared that defendant claimed the land under a deed purporting to have been made by said W. L. F. Woods and wife, acknowledged by the grantors before a justice of the peace, E. A. Yoyless, on 1 February, 1912, and placed upon the registration books on 6 December, 1912, and that W. L. F. Woods died on 24 February, 1920. Plaintiff contending, as stated, that the deed under which defendant claimed had never been delivered, introduced Laura Woods, the surviving widow, and one of grantors in said instrument, and proposed to prove by said witness, in effect, that the deed was never delivered "to defendant, that it was prepared and acknowledged before a justice of the peace with a view to its execution, and was not to be delivered till Worth Woods executed a bond for the support and maintenance of grantors while they lived; that finding such stipulation was not in the deed, and no bond had been prepared, the witness took charge and control of the deed, and put it in her bureau drawer, where it stayed unregistered for about six months; that defendant then lived with the grantors, and on one occasion after the deed had been acknowledged witness and her husband went to Murphy on a visit, leaving defendant at home, and soon after getting to Murphy, she met defendant, who had also come to town; that witness remained two days at Murphy, and some time after she returned home she found that the deed in question had been taken from the bureau drawer without her knowledge or consent, and that later she learned that the same had been registered. On objection, the pertinent portion of the proposed testimony was excluded by his Honor on the ground, as argued before us, that the husband being dead, the surviving widow was incompetent to testify under sec. 1631, Eevisal, but in our opinion the ruling cannot be upheld. The section of the statute referred to was enacted to prevent a party to a suit from testifying as to a transaction against the estate or interest of the other party, when the latter is dead and *633unable to give Ms version of tbe matter. The inhibition operates, and is intended to operate as to adverse parties to the transaction. In the case here presented the transaction is between the husband and the wife on the one side and the defendant, the alleged grantee, on the other, the latter being alive and present, and the proposed evidence of the surviving wife is neither within the terms or purpose of the law. The pertinent decisions construing this section are all in support of this view. Lehew v. Hewett, 138 N. C., 8; Johnson v. Townsend, 117 N. C., 338: Peacock v. Stott, 90 N. C., 518. In Lehew v. Hewett, supra, the action was by a surviving husband against a- grantor to correct a deed made by defendant to deceased wife of plaintiff, where the agreement was that it was to be made to the wife for life, and then to the husband, the husband was held competent to testify to the agreement with defendant as to how the deed should be made, the ruling being stated as follows: “In an action to correct a deed made to the plaintiff’s wife, who is dead, the plaintiff can testify as to what took place between him and the grantor, who is living; and the fact that his wife’s estate is affected by the evidence does not render it incompetent under section 590 of the Code.” Apart from this, the proposed evidence as to the deed being in the control of the witness, kept in her drawer and unregistered, and that it was taken therefrom and put on the registry without her knowledge or consent, would seem to be receivable as independent facts not coming within the provisions of the law. In re Bowling, 150 N. C., 507-510; McCall v. Wilson, 101 N. C., 598. Again, plaintiff offered to prove by the justice of the peace, who took the acknowledgment of the alleged grantors, their declarations at the time tending to show that no present delivery was contemplated, nor until a satisfactory agreement was executed for their support, and on objection this evidence was also excluded. The defendant here was relying, in part, and to a great extent, on the recognized principle that where a deed has been acknowledged and registered a delivery is presumed until the contrary is clearly made to appear. Linker v. Linker, 167 N. C., 651; Helms v. Austin, 116 N. C., 751. The acknowledgment then becomes one of a series of facts constituting .the res gestae. Fraley v. Fraley, 150 N. C., 501, and the declarations of the parties in doing the act, characterizing the same and expressing their real intent at the time is relevant and receivable as substantive evidence. Stanford v. Grocery Co., 143 N. C., 419; Merrell v. Dudley, 139 N. C., 59. And in any event these declarations of Mrs. Woods would be competent to corroborate her direct testimony in so far as same had been admitted.

For the errors indicated, the plaintiff is entitled to a new trial, and this will be certified that the judgment of nonsuit be set aside, and the cause be further proceeded with in accordance with this opinion.

New trial.