Samuel, Blaisdell vs. Edmund Cowell, 14 Me. 370

After a continuance, the opinion of the Court was prepared by Weston C. J. The Judge below instructed the jury, that the grantor of the tenant, to whom he executed a deed of warranty, would have been a competent witness for him at the trial. As this was an opinion given in a matter of law, if erroneous, it does in our judgment furnish just ground of exception. But it does not appear to us to have been erroneous.

In trials between creditors and the grantees or assignees of debtors, whose title is attempted to be impeached as fraudulent, the debtor is in our practice received as a competent witness for either party. His interest is regarded as balanced. If the creditor prevails, the debtor’s land goes to pay his debt, at its fair and just value, as appraised by disinterested men under oath ; and he becomes answerable upon his covenants for the same value to his grantee. If the grantee prevails, he escapes liability upon his covenants, but his debt remains unpaid.

The practice has been so uniform upon this point, before our separation and since, that we do not feel at liberty to change it, by any nice balancing of possible consequences as to costs, or the chance of different estimates as to value. It has been directly decided in Massachusetts, that such a witness is competent against a creditor. Prince v. Shepard et al. 9 Pick. 176. The property in litigation in that case was personal; but the assignee held it under a covenant of general warranty; and we are not aware that such a covenant has a more extensive efficacy in real, than in personal estate.

Comparing the deed, under which the tenant held, with the title of the demandant, and the debt upon which it is based, that of the tenant must prevail, unless it is defeated upon the ground of actual fraud. To do this, the burthen of proof was very clearly upon the demandant. It is insisted, that the jury were otherwise instructed. If this is fairly deducible from the exceptions, they ought to be sustained. That part of the charge only is stated, which comments on the non-production of the witness by the tenant.

For aught appears, the jury may have been properly instructed before, as to the state of the apparent title, and what it was incumbent on the demandant to do to defeat it. The Judge speaks of the tenant, “ who comes to prove the transaction bona fide.” He comes to exhibit such proof, if a pima facie case is made out against him. And that the cause had advanced to this stage, appears from the facts reported. It is stated, that evidence had- been adduced, tending to show, if believed, that the deed was inoperative against subsequent creditors.

How far this was repelled, must have been the part of the case, to which the attention of the jury was called. Without knowing what had been previously stated in other parts of the cause, we cannot deduce affirmatively, that tire jury were instructed, that the burthen of proof was upon the tenant, to show that his deed was not fraudulent. That the burthen was upon the other side, is a principle of law, with which tire Judge must have been familiar, and which never could have been seriously questioned.

If the counsel for the tenant had any just apprehension, that the jury might have been misled upon this point, it was competent for them to have requested the Judge to instruct the jury directly and specifically, as he understood the law; and if such instruction had been improperly withheld, and he had then excepted, his exceptions would have been sustained.

As to the suggestion of the Judge, that the tenant might have called his grantor as a witness, and his intimation to the jury, that they might well consider, whether his omission to do so, ought not to weigh against him, it is a circumstance prominently exhibited, and may perhaps indicate the leaning of his mind, in regard to the effect of the testimony; but he left the whole matter to the consideration of the jury, to whom it properly belonged.

He does not profess in this part of his charge to give a legal direction ; but he submits it to their judgment, whether the circumstance stated, ought not to weigh against the tenant. We cannot discover in this language any erroneous “ opinion, judgment or direction in matter of law.” Exceptions overruled.