#### J. L. SHERRILL v. B. M. WILHELM.

(Filed 21 December, 1921.)

Evidence — Deceased Persons — Statutes—Title—Common Source — Parol Trusts.

Where a suit seeks to engraft on the title of the grantee in the deed to-land a parol trust in favor of the plaintiff, upon condition that he pay the-purchase price and receive the title, the grantor, after the death of the holder of the legal title, is incompetent as a witness in plaintiff’s favor to testify to the facts relied upon by him, being the common source of title of the plaintiff and the deceased, under whom the defendant claims. C. S., 1795.

Appeal by defendant from McElroy, J., at August Term, 1921, from Iredell.

Civil action to recover possession of a tract of land under an alleged parol agreement, whereby the plaintiff contends that the locus in quo was purchased by him from one E. J. Plott, title taken in the name of *674Dr. W. W. Wilhelm, now deceased, wbo bad advanced a part of tbe purchase money witb tbe understanding tbat deed would be made to plaintiff upon tbe repayment of tbe amount borrowed or advanced. Plaintiff alleges tbat tbe entire purchase price was paid by him to Dr. Wilhelm before bis death, but tbat tbe deceased neglected to have any conveyance of tbe land executed to him in accordance witb bis agreement.

Upon tbe trial R. J. Plott was allowed to testify, over tbe defendant’s objection, to certain personal transactions and communications which be bad witb tbe deceased in regard to purchasing tbe land for plaintiff, as follows: “He (Dr. Wilhelm) said be wanted to buy tbe land for John Sherrill. When I went to make tbe deed, I asked whether it should be made to him or to Sherrill. He said, 'Make tbe deed to me, and when Sherrill finishes paying for it, I will make him a deed.’ Tbe deed was made witb this understanding at tbe time be asked me about tbe price, and when be told me Sherrill wanted him to buy tbe land for ■him, be said be owed Sherrill some amount.”

There was a verdict and judgment in favor of plaintiff, and tbe defendant appealed.

D. L. Baymer and II. P. Grier for plaintiff'.

W. D. Turner and Dorman Thompson for defendant.

Stacy, J.

Plaintiff contends tbat tbe evidence of R. J. Plott in regard to tbe personal transactions and communications which be bad witb Dr. Wilhelm, tbe deceased, concerning tbe purchase of tbe land in question for plaintiff, etc., is incompetent under C. S., 1795, and should have been excluded. It will be observed tbat Plott is tbe common grantor from, through, or under whom both parties claim title, mediately or immediately, “by assignment or otherwise,” to tbe locus in quo. Thus it would seem tbat tbe evidence given by tbe witness falls directly within tbe inhibition of tbe statute, being offered, as it is, against tbe defendant, wbo also derives bis title or interest “from, through, or under a deceased person,” to wit, Dr. Wilhelm, tbe party witb whom tbe witness bad tbe personal transactions and communications, and about which be testified over objection by tbe defendant. Sorrell v. McGehee, 178 N. C., 279; Irvin v. R. R., 164 N. C., 6; Bunn v. Todd, 107 N. C., 266.

Practically tbe same question here presented arose in tbe case of Carey v. Carey, 104 N. C., 171, and it was there decided tbat evidence similar to tbat now under consideration was properly ruled out. Tbe Court saying: “Tbe plaintiff offered, on tbe trial, to prove by tbe witness Wheeler tbat be and bis deceased son purchased from tbe witness tbe land in controversy. He plainly claims an 'interest’ in it against tbe *675defendants, wbo are beirs at law of bis deceased son, by virtue of tbe purchase from tbe witness; be alleges tbat be paid to bim part of tbe purchase money; hence, be ‘derives bis interest’ in tbe land, whether it be legal or equitable, from tbe witness, through tbe deceased son — tbe witness is tbe source of bis interest, whatever it may be. It was proposed to have tbe witness testify as to a personal transaction or communication between himself and tbe deceased son, tbe father of tbe defendants, wbo claim under bim. Nothing to tbe contrary appearing, it was proposed to prove such a transaction — this is just implication. If it were not such, tbe plaintiff should have so shown, and rendered tbe witness competent. It might possibly be tbat tbe son was not present at tbe purchase; tbat tbe witness did not communicate with bim on tbe subject, and if this was so, tbe plaintiff bad tbe right to prove tbe fact if be could. So far as appears, tbe witness was not competent to prove tbe purchase of tbe land, as proposed by tbe plaintiff, because tbe purchase was a personal transaction with tbe deceased father of tbe defendants, wbo claim under and derive their title from bim, and because tbe plaintiff, claiming adversely to tbe defendants, derives bis interest in the land from tbe witness, as do, also, tbe defendants.”

It is true this case was modified, in part, on a second appeal, 108 N. C., 271, but not in respect to tbe above ruling.

We think a fair test in undertaking to ascertain what is a “personal transaction or communication” with tbe deceased about which tbe other party to it cannot testify is to inquire whether, in ease tbe witness testify falsely, tbe deceased, if living, could contradict it of bis own knowledge. Carey v. Carey, supra. Death having closed tbe mouth of one of tbe parties, it is but meet tbat tbe law should not permit tbe other to speak of those matters which are forbidden by tbe statute. Men quite often understand and interpret personal transactions and communications differently, at best; and tbe Legislature, in its wisdom, has declared tbat an ex parte statement of such matters shall not be received in evidence. Such is tbe law as it is written, and we must obey its mandates.

Applying these principles, as previously declared, it would seem tbat tbe evidence of tbe witness Plott, which forms tbe basis of defendant’s second exception, should have been excluded. For tbe error in receiving same oyer objection made in apt time, a new trial must be granted, and it is so ordered.

New trial.