HICKS v. WHITESIDES

HICKS v. WHITESIDES. Ejectment for a quarter section of land. Defendant disclaimed as to all except the north half of the section, eighty acres, within which he had thirty acres enclosed and called the “ Old Eield.” Defendant offered his brother A. B. Whitesides as a witness to prove defendant’s prior possession of that part of the north half of the section outside of the “ Old Eield.” Witness on his voir dire said he lived with defendant, was interested in the crops which were in the “ Old Eield ” only, and had no interest whatever in the balance of the land: Reid, that the witness was competent; that his being interested in farming within the “ Old Eield,” did not make him interested in the result of the litigation as to the land outside of that field. Appeal from the Fifteenth District. Ejectment for a quarter section of land. Defendant in his ..•answer claims title to the north half of the quarter section, and in •substance concedes plaintiff’s claim to the south half. It was proven on the trial that plaintiff surveyed and located, under the Possessory Act, one hundred and sixty acres of land. Prior to ;plaintiff’s survey and settlement, defendant was living upon a tract of land adjoining plaintiff on the north. Thirty acres of defendant’s tract, called the “ Old Field,” were enclosed by a fence, and extended into one corner of the north eighty acres claimed by plaintiff. Defendant called A. R. Whitesides as a witness to prove defendant’s prior possession of so much of the eighty acres as is outside of the “ Old Field.” The witness, being sworn on his voir dire, said he was a brother of defendant, lived with him and carried on business with him; that he paid no rent, had no interest in the eighty acres, but had an equal interest in the profits of farming; that there was a crop in the “ Old Field ” only; that outside of this field he had no interest in land or crops. Plaintiff objected to the witness on the ground of interest; sustained, and witness rejected, defendant excepting. Witness executed to defendant a bill of sale of his interest in the crops, without warranty. Witness again offered, and again rejected. Judgment for plaintiff for all the land except the “ Old Field.” Defendant appeals. Jos. E. N. Lewis, for Appellant. H. O. & W. H. Beatty, for Respondent. [MAJORITY — Baldwin, J. delivered the opinion of the Court] Baldwin, J. delivered the opinion of the Court Cope, J. concurring. We think that the witness, A. R. Whitesides, was not incompetent for the defendant. The fact that he was interested with the defendant in farming within the “ Old Field ”—a part of the eighty acres sued for—did not make him interested in the result of the litigation outside of that field, in respect to which he had no interest. We do not see how the verdict and judgment could affect him—his proffered testimony not going to the general title, or the title to or right of possession of the field, but to the piece of ground outside of it. It is as if two distinct parcels of ground had been sued for, in only one of which the witness was interested; but that interest would not disqualify him from testifying as to the other. Judgment reversed and cause remanded.