Love v. Stone

Citations

• 56 Miss. 449

Syllabus

<p>1. Witness. When incompetent against estate of deceased person. Case in ¡judgment.</p> <p>S. was the owner of the legal title to a certain tract of land. The heirs of L. filed a bill in equity, setting up an equitable claim to the land. L. had bought it from W., who gave him a warranty deed therefor. W. being dead, his administrator was made a co-defendant with S. At the hearing, the deposition of S: was offered as evidence of transactions which occurred between him and W., tending to establish his right to the land against W. and his vendee, L. The complainants moved to suppress his deposition, on the ground that it was testimony against the estate of W., a deceased person. The motion was overruled. Held, that the motion was properly overruled. There being no controversy between S. and the estate of W., the fact that the estate may, as a result of this contest, be sued on the warranty in W.’s deed does not render S. incompetent as a witness in this suit. A party can only be excluded on such ground where he is a witness against the estate of a deceased person in the suit in which he proposes to testify.</p> <p>2. Practice. Deposition. Objections, when to be made.</p> <p>Where a motion is made to suppress a deposition upon a certain stated ground, and that only is considered by the lower court, this court will not entertain any other objection first made here.</p> <p>3. Estoppel. When arising from conduct. Case in judgment.</p> <p>In 1859, S. bought a half-section of land, and in the same year sold it, by parol, to W. Without paying for it, W. took possession. In 1863, W. sold one undivided half-interest in it to L., and in 1865, the other to Y. The land was then divided, L. getting one hundred acres, and Y. two hundred and twenty acres. L. erected valuable and costly improvements on his part, and S. made no objection, and gave no actual notice of his claim to the land. S. assisted W. in making the sale to Y.; and Y. gave a deed of trust on his part of the land to