Poulson v. Stanley

HARRISON, J. Appeal from a judgment in favor of the plaintiff quieting her title to certain real estate.

The plaintiff was the wife of Peter Wilhelm Poulson, who died April 33, 1894, and the defendant Stanley is the administrator of his estate. The plaintiff claims title to the land in question by virtue of a conveyance alleged to have been made to her by her husband. The instrument was never recorded, and she was unable to produce it at the trial, claiming that it had been abstracted from her desk and destroyed. Testimony was given that a conveyance to the plaintiff of the property in question had been signed and acknowledged by her husband, and that such a conveyance had been in her possession subsequent to the time it purported to have been made. For the purpose of proving its delivery to her, the plaintiff was asked whether she had ever received a deed of the property from her husband. The defendants objected to this question upon the ground that under section 1880 of the Code of Civil Procedure, the plaintiff is incompetent to testify as to any fact occurring be[657]fore the death of her husband—this being an action by her against his administrator upon a claim against his estate. The court overruled the objection, and the defendants excepted thereto.

The provision of section 1880 relied on by the appellant is as follows: “The following persons cannot be witnesses: 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person as to any matter of fact occurring before the death of such deceased person.”

Whether a person shall be competent as a witness upon the trial of a question of fact, either by virtue of the relation he bears to the opposite party, or his interest in the cause of action, and the degree of interest in the cause which will disqualify him as a witness, are questions of legislative policy, and the function of courts in reference thereto is to apply the rules prescribed by the legislature. Formerly a party to an action was not permitted to be a witness as to any fact in issue therein, and such was the law in this state under the procedure act first enacted. The strictness of this rule was gradually modified until the adoption of the codes in 1872. The history of these changes prior,to 1864 is given in Davis v. Davis, 26 Cal. 23, 36; 85 Am. Dec. 157. In 1870 (Stats. 1869-70, p. 662) the legislature repealed section 393 of the practice act, under which this decision was made, and thereafter a witness was not incompetent by reason of the relation which he bore to the cause of action, or to the adverse party, except in the case of certain confidential relations. In the codes, as originally enacted, section 1880 of the Code of Civil Procedure, preserved the same rule, but in 1874 this section was amended by adding thereto subdivision 3, including as persons who were incompetent as witnesses, the following: “Parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted, against an executor or an administrator, upon a claim or demand against the estate of the deceased”; and in 1880 this subdivision was still further amended by including the assignors of such parties, and limiting the incompetency to matters of fact occurring before the death of the deceased person.