#### F. L. ABERNATHY and Wife, MINNIE H. ABERNATHY, v. J. M. SKIDMORE, J. M. CHERRY, S. H. JOHNSTON and Wife, M. WILLIE JOHNSTON; OLLIE HERMS and Her Husband, R. L. HERMS; LUCRETIA RAFTER and Her Husband, WILL RAFTER; ELLA YANDLE and Her Husband, A. F. YANDLE, and E. B. JOHNSTON and Wife, WILLIE JOHNSTON.

(Filed 24 June, 1925.)

Evidence — Deceased Persons — Statutes.

C. S., 1795, prohibiting a witness from testifying to transactions and communications with a deceased person under whom the witness claimed title to lands in dispute in the action, does not exclude the testimony of the witness to a conversation between the deceased person and another, who was alive at the time.

*67Appeal by plaintiffs from Lona, J., and a jury, at Special Term, June 16, 1924, of GastoN.

Action to reform and correct certain deeds for mutual .mistake.

L. D. Jobnston owned certain land in Mt. Holly, and be and bis wife, on 14 December, 1907, deeded certain land and tbe “land in controversy” to defendant, J. M. Skidmore. Deed recorded in Rook 72, p. 111.

On 28 December, 1918, tbe beirs of L. D. Jobnston conveyed to J. M. Oberry certain land in Mt. Holly, omitting tbe “land in controversy.” Deed recorded in Book 179, p. 426. Plaintiffs claim tbat J. M. Oberry, on 7 October, 1922, altbougb contracting to do so, conveyed certain land in Mt. Holly, omitting tbe “land in controversy.” Deed recorded in Book 154, p. 598. In tbis deed is tbe following: “Tbe exceptions are contained in tbe deed executed to said Skidmore by said L. D. Jobnston and wife, wbieb is recorded in deed book 72, p. Ill, in tbe office of tbe Register of Deeds of Gaston County, North Carolina.”

Tbe plaintiffs claim tbat prior to 7 October, 1922, J. M. Oberry and wife, in consideration of $4,500, contracted and agreed to sell plaintiffs certain land in tbe town of Mt. Holly, describing tbe land agreed to be conveyed. W. B. Rutledge, a justice of tbe peace, was selected to draw tbe deed. Tbat believing and relying on tbe deed as drawn as conveying tbe land agreed, tbe consideration was arranged and tbe deed delivered and recorded in Register of Deeds’ office for Gaston County, Book 154, p. 598.

“Tbat tbe plaintiffs relied on said deed conveying tbe lands as contracted to- be conveyed as aforesaid without any exceptions, and discovered no exceptions in such deed until on or about tbe - day of May, 1923, when tbe defendant, J. M. Skidmore, claimed tbat tbe said lands so conveyed bad been conveyed to him and tbat be was claiming, tbe title and an interest in tbe same; whereupon tbe plaintiffs examined their deed and found tbe exceptions therein as appear from such deed.” Then tbis action was brought by plaintiffs against J. M. Cherry, L. D. Johnston’s beirs, and J. M. Skidmore, to correct or reform tbe deeds for mutual mistake.

Tbe.prayer of plaintiffs is as follows:

“1. Tbat it be declared tbat tbe deed executed by said L. D. Jobnston and wife to said J. M. Skidmore be reformed to conform to what was intended to b'e conveyed therein, as hereinbefore alleged.

“2. Tbat tbe deed from tbe said Jobnston beirs to tbe said J. M. Cherry be corrected and reformed so tbat it conveys what was intended to be conveyed by tbe said Jobnston beirs to tbe said J. M. Cherry, as hereinbefore set out as aforesaid.

*68“3. That tbe deed from tbe said J. M. Cberry and wife to tbe .plaintiffs be corrected and reformed so tbat tbe exceptions be stricken therefrom and tbe deed convey fully sucb lands as were intended to be conveyed by tbe said J. M. Cberry and wife to tbe plaintiffs.

“4. Tbat if tbe said deeds are not corrected and reformed so as to give and grant to tbe plaintiffs a full and indefeasible title to tbe aforesaid lands, tben, in tbat event, tbat tbe plaintiffs recover a judgment against tbe defendant, J. M. Cberry, and against tbe said Johnston beirs, in tbe sum of $6,500 for tbe breach of covenants contained in tbe said deeds executed by tbe said Jobnston beirs and tbe said Cberry and wife.

“5. And tbat it be declared tbat tbe said J. M. Skidmore nor any other person than tbe plaintiffs have any interest or title, or are entitled to tbe possession of tbe said lands, and tbat tbe cloud, as aforesaid, be removed from tbe said land.”

All tbe issues were answered by tbe jury in favor of defendant Skidmore.

Plaintiffs made numerous exceptions and assignments of error and appealed to tbe Supreme Court.

Mangum & Benny for plaintiffs.

Mason & Mason and A,. G. J ones for defendant J. M. Skidmore.

ClauksoN, J.

It is with some reluctance tbat we feel compelled to send this action back for a new trial. Tbe case seems to bave been carefully tried in tbe court below by tbe able and distinguished jurist, who for long years adorned tbe Superior Court bench and has since died.

Plaintiffs’ exception and assignment of error No. 2, — “to tbe exclusion by tbe court below of certain evidence as hereafter appears: Mrs. Ollie Herms, witness for plaintiff.

> “Q. Just state what tbat conversation was?

> “Objection by defendant, J. M. Skidmore, on the ground tbat this is in purview of C. S., 1795. Counsel states tbat tbe witness is a defendant and an heir at law of tbe grantor, L. D. Jobnston, who is dead. Tbe defendant, Skidmore, objects to anything tbat was said by tbe witness’ father, U. D. Jobnston, on tbe following grounds: Tbat sucb evidence is not admissible. Tbe witness is not competent to testify as to tbe transaction or communication of her father, L. D. Jobnston, because tbe witness is a party defendant and is called as a witness by the plaintiffs; tbat the plaintiffs derive a title through tbe witness, who claims title from her father, L. D. Jobnston; tbat L. D. *69Johnston is deceased; that the witness proposes to testify as to a transaction or communication with the deceased; that the witness is nominally a defendant, but in fact a plaintiff, as her interest is practically the same as the plaintiffs; that the matter and thing as to which the witness is ashed to testify is not against the interest of the witness, but is in behalf of the interest of the witness and the plaintiffs and is against the interest of the defendant, J. M. Skidmore.

> “Court: The court having sent the jury' out at this time, the evidence of the witness is taken as follows; that the court may pass on same:

> “Q. Just state what that conversation was. The conversation that took place between your father and Mr. J. M. Skidmore. State what was said?

> . “Ans. Well, I heard my father tell Mr. Skidmore he would sell him the tract of land south of this street, the first street below the house, extending west to Dutchman’s Creek, for $225. Mr. Skidmore said he would take it. That is all.”

C. S., 1795, is as follows: “Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not.be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic,' by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication.”

The question for our decision: Mrs. Ollie Herms is a daughter of L. D. Johnston, from whom the defendant J. M. Skidmore claims title to his land. Skidmore is living, Johnston is dead. Mrs. Ollie Herms, admitting she is interested in the event, is not testifying “concerning a personal transaction,” etc., but is testifying to a conversation had between her dead father and Skidmore. The mischief the statute was passed to prevent was the giving of testimony by a witness interested in the event as to a personal transaction or communication between witness and the deceased person whose lips are sealed in death. Mrs. Herms heard the conversation between her father and • the defendant Skidmore, who is living and a party defendant. We think the testimony *70competent. Reece v. Woods, 180 N. C., 631; Johnson v. Cameron, 136 N. C., 243; Highsmith v. Page, 161 N. C., 355; Zollicoffer v. Zollicoffer, 168 N. C., 326. We confine our decision strictly to tbe language in tbe statute. We are not inadvertent to tbe interesting situation disclosed in Brown v. Adams, 174 N. C., 490.

For tbe reasons given, there must be a

New trial.