#### Marie A. Yerkes et al. v. Charles C. Blodgett et al.

*Exclusion of testimony known equally to decedent*— Indemnification..

In a foreclosure proceeding by tbe executors of the mortgagee the testimony of tbe defendant mortgager is inadmissible under Act 155 of 1875 which prohibits a party from testifying to facts known equally to a deceased opponent.

"Where the notes secured by a mortgage were missing and a foreclosure decree was allowed upon the theory that they were still in existence, ^ complainant was required to indemnify defendant against their enforcement in case they reappeared in the hands of strangers.

Appeal from Superior Court of Detroit.

Submitted Janu.ary 19.

Decided April 25.

Foreclosure. Bill dismissed below.

Beversed.

*212Moore, *Cornfield c& Warner*and *Wilkinson, Post <&■ Wilkinson*for complainants.

*Theodore Pomeyn*and *Don M. Dickinson*for defendants-

Marston, J.

This case being prosecuted by the complainants as representatives of the estate of Solomon Gardner, deceased, much of the testimony of the defendant Charles C. Blodgett must be excluded under the statute.

A careful examination of all the testimony proper to be considered, satisfies us that notes were executed and delivered by Blodgett, as referred to in the mortgage, although complainants have been unable to find and produce the-same or account for them. The fact that Capt. Blodgett,, when first asked about the notes, denied all knowledge of their whereabouts, but did not question the fact that such notes had been given, is very significant. A statement of all the facts which lead us to the conclusion at which we-have arrived, or a discussion thereof, would hardly seem, necessary.

It is proper to add, however, that it does not follow, as-was argued by counsel, that the conclusion arrived at necessarily establishes the fact, or even implies, that Captain Blodgett obtained possession of these notes during Capt. Gardner’s last sickness. The opinion is not based, in whole or ■ in part, upon any such theory or supposition. On the contrary we find no evidence fairly tending to establish such fact, or tending even to show that he had an opportunity so • to do.

These notes may yet be found, and it is very proper therefore that the maker thereof should be protected against-their turning up in the hands of third parties.

The decree of the court below will be reversed, and a. decree rendered in favor of complainants, and requiring-them to properly indemnify the defendant as against these-motes.

Graves, O. J. and Cooley, J. concurred.

*213Campbell, J.

I do not think there is enough in this case lo show the continued existence of the notes on which the suit is based, if they ever existed, or to show that at the time ,of his death Mr. Gardner regarded the claim as one which he could enforce or meant to enforce. There is not enough in my opinion to trace them as then existing, or to show any unlawful suppression,of them. In all such suits the notes

must be produced or accounted for as existing, and as Captain Blodgett cannot testify on his own behalf, there should be no relaxation of the rules of evidence to his prejudice.

I agree with the court below that the case was not made •out.