DeWitt C. Bouton, as Executor, etc., of Gershom Hanford, Deceased, Appellant, v. William S. Welch and Alice Welch, his Wife, Respondents

DeWitt C. Bouton, as Executor, etc., of Gershom Hanford, Deceased, Appellant, v. William S. Welch and Alice Welch, his Wife, Respondents. Mortgage foreclosure—oral agreement by the deceased mortgagee to assign the mortgage to the mortgagor’s wifethe moi'tgagor hamng suffered a default may testify to it — competency of declarations of the husband—when oral testimony at variance with the mortgage is competent Jor another purpose—a mere recital of costs in a judgment is not reviewable. - . In an action brought against a husband and wife to foreclose a mortgagé given by the husband to the plaintiff’s testator, the wife set up an oral- agreement between her, her husband and the testator, by which the testator agreed to assign the mortgage to the wife or bequeath it to her at his death. Meld, that the husband,, who, at the time of the trial, had withdrawn his answer and- was in the position of a defendant in default, was not interested in the event of the action within the meaning of section 829 of the Code of Civil Procedure, and might testify in support of the alleged oral agreement; That declarations made by the husband to a third party were not evidence against the wife nor were they admissible to contradict the testimony of the husband, his attention when a witness not having been called to them; That evidence given by the husband to the effect that the testator said that he would require in payment of- interest only such produce as the husband and wife could spare from-their farm did not contradict the terms of the mortgage, where it was not offered for that purpose but only as a fact bearing upon the further agreement that the mortgage should be given to the wife upon the mortgagee’s death and that it was given for a large amount so that the transfer to her would be substantially a transfer to her of the farm itself; That where tire judgment recited that the costs of the action on a former appeal had been taxed against the plaintiff at a specified sum, but made no provision for their collection or payment, the question whether the costs were properly so taxed or whether the executor should be required to pay the same was not presented by an appeal from such judgment. Appeal by the plaintiff, DeWitt 0. Bouton, as executor, etc., of Gershom Hanford, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Tompkins on the 4th day of August, 1900, upon the report of a referee. The action was brought for the foreclosure of a mortgage. The contention.of the respondent, Alice Welch, who was the adopted daughter of the plaintiff’s testator, was that the latter, desiring to make some provision for her, induced her husband to exchange a farm owned by him for a farm owned by the testator; that the ■exchange was effected and the mortgage in suit was then given for an amount which was double the difference in the value of the two farms, the testator orally agreeing that he would either assign the mortgage to the respondent or bequeath it to her at his death. M. W. Tompkins, for the appellant. George B. Davis, for the respondent Alice Welch. [MAJORITY — Parker, P. J.:] Parker, P. J.: That the contract under which this mortgage was given was such as it is claimed to have been by the defendants, and that the defendant Alice Welch thereby acquired the right to have it assigned to her, upon the death of the mortgagee, was settled by this court when the case was before us on the former appeal. The facts in the record now before us are substantially as they appeared to be in the former one, and are fully stated in the opinion appearing in 48 Appellate Division, 378. The success of the present appeal, therefore, must depend upon whether error appears in the exceptions taken upon the trial. The first and principal one urged, is that the evidence of the husband, William S. Welch, was not admissible under section 829 of the Code. As the case now stands, the defendant William S. Welch is in the position of a defendant in default. His answer has been withdrawn, and judgment of foreclosure and sale may at any time be entered against him. The defendant Alice Welch has, in her answer, set up the equitable defense that she is entitled to a specific performance of the agreement that the mortgage be assigned to her upon the death of the plaintiff’s testator, and she prays, substantially, for a judgment directing such an assignment, adjudging her to be the owner of the. mortgage, and that it be foreclosed and a sale of the premises had for her benefit. It was the issues raised by such answer that have been tried in this action. So far as those issues were between her and this plaintiff, the husband had no interest in the event thereof; so far as they were issues between -her and the husband, he was not testifying in his own behalf or interest. The fact that the witness is a party to the record is no longer controlling. ( Whitehead v. Smith, 81 N. Y. 151.) And a witness whose interest in the result is adverse to that of the party calling him, does not testify “ in his own behalf or interest.” (Carpenter v. Soule, 88 N. Y. 251, 257; Albany County Savings Bank v. McCarty, 149 id. 71, 84.) An interest in the question is not enough to disqualify, as that is not an interest in the event. (Albany County Savings Bank v. McCarty, supra. See, also, Eisenlord v. Clum, 126 N. Y. 556.) Such exception, therefore, is not well taken. A further exception was taken that the evidence of the husband, . William S. Welch, that the deceased said he would require only such produce as they could spare from the farm, as payment of interest, contradicts the terms of the mortgage. I think not. Such evidence is not directed to the question as to what were the terms of the mortgage, as agreed upon by the parties. It is not disputed but that they were agreed upon as written therein. But it was stated as a fact bearing Upon the further agreement claimed to have been made by the mortgagee, that upon his death, the mortgage should be given to Welch’s wife, and that it was given for a large amount so that its transfer to her would be, substantially, a transfer to her of the farm itself. Considering the bearing which it had upon the case, .and the purpose for which it was given, I do not consider it as an attempt to contradict at all the terms of the mortgage. Nor was the exclusion of the husband’s statements to the witness Bates harmful error. They were.not admissible as declarations of Welch against himself, because, upon the issue being tried, Welch had no interest and could not be considered a party thereto. He was- testifying merely as a witness for Alice, upon a separate issue between her and this plaintiff, an issue as separate and distinct from his interests as if she had brought a separate action to enforce. against this plaintiff, as executor, the claim which she has set up here. As such a witness, Welch’s declarations were not evidence against Alice Welch. So far as his declarations contradicted the evidence which he gave as her witness and in her favor,' they could he proven after his attention had been properly called to them. Ini this instance, his attention had not been called to the precise statement to which Bates was asked to testify. Therefore, no error was made in excluding it. I have examined the other exceptions taken upon the trial, and do not find any that show any reversible error. The appellant further claims that an error has been committed in taxing costs of the former appeal against the executor. An examination of thé judgment as it appears in the record before us shows that there is no direction therein that the executor pay, or is liable for any costs whatever to the defendants, or either of them. It is recited therein that the costs of the action ón appeal have been taxed against the plaintiff at $163; but no provision is made in this judgment for its collection or payment. Hence, the question whether it was properly so taxed, or whether the executor should be required to pay the same, is not presented by an appeal from such judgment. Whatever was the meaning and force of the provision as to costs in the order made by this court on the former appeal, that question cannot be presented in this form. The judgment appealed from must be affirmed. / Judgment unanimously affirmed, without costs.