#### MRS. CATHARINE A. BARTON v. DANIEL BARTON et al.

(Filed 3 November, 1926.)

Evidence — Deceased Pei’soms — Transactions and Communications — Statutes.

Where, in a suit seeking the equitable relief of reformation of a wife’s deed of lands to her husband, evidence that the wife in the presence of her husband delivered the conveyance claimed by her to have been executed by the mistake of the justice of the peace, to said justice, who then took her acknowledgment, is not of a personal communication or transaction, etc., with her deceased husband as inhibited by O. S., 1795. *Smith v. Moore,*142 N. 0., p. 277, as to the question of principal and agency, cited and distinguished.

Appeal by plaintiff from *Webb, J.,*at May Term, 1926, of Foksyth.

Civil action to correct error in deed, alleged to have been caused by mutual mistake, or mistake of tbe draftsman, tried in tbe Forsyth County Court on tbe following issues:

“1. Was the deed executed by mutual mistake of Catharine A. Barton and A. A. Barton, conveying a fee simple except her dower interest instead of a life estate, as alleged in tbe complaint? A. Yes.

“2. If so, is tbe plaintiff estopped by her actions and conduct to contest such mutual mistake, as alleged in tbe answer? A. No.

“3. Is tbe plaintiff’s cause of action barred by tbe three-year statute of limitation, as alleged in tbe answer? A. No.

“4. Is tbe plaintiff’s cause of action barfed by tbe ten-year statute of limitations, as alleged in tbe answer? A. No.”

On appeal to tbe Superior Court, tbe cause was remanded for another bearing for errors in tbe admission of evidence; and, from this order tbe plaintiff appeals, contending that no reversible error was committed on tbe trial in tbe county court. Defendants also gave notice of an appeal, but this was abandoned.

*Parrish & Deal for plaintiff.*

*Swinlc, Clement, Hutchins & Feimster for defendants.*

*454Stacy, C. J.

The plaintiff, Catharine A. Barton, inherited several valuable pieces of real property from her father, Phillip Hopkins. In 1901, she conveyed to her husband, A. A. Barton, a life estate in one of these tracts of land. Later this property was sold, and in 1912, the plaintiff conveyed another lot to her husband, intending to provide a home for him during his lifetime only, but by mutual mistake, or the mistake of the draftsman, the deed did not limit the estate conveyed to one for life. Upon its face, the deed conveys a fee simple. Plaintiff’s husband died in 1925, without child or children him surviving. This action is brought by his widow against his heirs at law to reform the deed or to correct the mistake.

Plaintiff testified, over objection, that in 1912, when the deed in question was executed, she took the deed, which she had executed in 1901 conveying a life estate to her husband in the first tract, to a justice of the peace and asked him to draw a deed for the second tract “just like the other one,” and upon assurance from the justice of the peace that the deed he had prepared was just like the first one and conveyed only a life estate to her husband, she signed the same, not knowing or thinking that it was a deed in fee simple.

Due to the admission of this evidence, over objection by the defendants, the Superior Court deeming it to be incompetent under C. S., 1795, the cause was remanded for another hearing, as provided by the act creating the Forsyth County Court. *Chemical Co. v. Turner,*190 N. C., 471; *Smith v. Winston-Salem,*189 N. C., 178.

On cross-examination, and, of course, without objection, the plaintiff was asked if her husband wás present at the time of her conversation with the justice of the peac'e. She answered in the affirmative. Then the following question was asked her: “And you handed the deed to your husband after this conversation with Mr. Lehman (justice of the peace), didn’t you?” To which she replied: “Yes, sir.” The cross-examination of the witness was first had in the absence of the jury and later offered in evidence by the defendants. There was other evidence tending to support the plaintiff’s view of the case.

It will be observed that the plaintiff had testified to no personal transaction or communication between herself and her husband, since deceased, until she was asked the direct question on óross-examination as to whether she handed the deed in question to her husband. *In re Will of Mann, ante,*248. It is the holding of a number of cases, in keeping with the language of the statute, that the personal transaction or communication about which the interested witness may not testify is one between the witness and the deceased, and not one between the witness and a third person, even though the transaction or communi*455cation took place in tbe presence of tbe deceased. *Zollicoffer v. Zollicoffer,*168 N. C., 326; *Worth v. Wrenn,*144 N. C., 656; *Lehew v. Hewett,*138 N. C., 6; *Johnson v. Cameron,*136 N. C., 243; *Watts v. Warren,*108 N. C., 515; *Bunn v. Todd,*107 N. C., 266; *Norris v. Stewart,*105 N. C., 455; *McCall v. Wilson,*101 N. C., 598.

Tbe case of *Smith v. Moore,*142 N. C., 277, strongly relied on by appellees, is not at variance witb tbis position. There tbe plaintiff was not allowed to testify to a personal conversation between berself and tbe attorney for tbe decedent, bad in bis presence; because, as said by *Walker, J.,*in delivering tbe opinion of tbe Court: “Tbe result is tbat where an attorney acts or speaks for bis client, or an agent for bis principal in their presence, tbe one is by tbe law thoroughly identified witb bis client and tbe other witb bis principal, as much so as if tbe attorney or agent bad not been present at all and tbe client or principal bad acted for himself, or tbe existence of tbe former bad been merged into tbe latter.”

Likewise, we think tbe other cases cited by tbe defendant are distinguishable from tbe one at bar. It would only be a work of supererogation to point out tbe various differences.

Speaking to tbe question in *White v. Evans,*188 N. C., 212, it was said: *“We*think a fair test in undertaking to ascertain what is a ‘personal transaction or communication’ witb tbe deceased about which tbe other party to it cannot testify is to inquire whether, in case tbe witness testify falsely as to what transpired between them, tbe deceased, if living, could contradict it of bis own knowledge. *Carey v. Carey,*104 N. C., 171. Death having closed tbe mouth of one of tbe parties, it is but meet tbat tbe law should not permit tbe other to speak of those matters which are forbidden by tbe statute. Men quite often understand and interpret personal transactions and communications differently, at best; and tbe Legislature, in its wisdom, has declared tbat an *ex parte*statement of such matters shall not be received in evidence. Such is tbe law as it is written, and we must obey its mandates.”

Furthermore, it would seem tbat tbe defendants ought to abide tbe consequences of the evidence elicited by their cross-examination. But we deem it unnecessary to discuss tbis view of tbe case.

There was error in remanding tbe cause for a new trial.

Eeversed.