Opinion
(December Term, 1845.)
1. A party is never permitted to produce general evidence to discredit his own witness; but if a witness prove facts in a cause, which make against the party who called him, yet the party may call other witnesses to prove that these facts were otherwise.
2. One who has made a mortgage of property to secure a debt may afterwards convey the same property to the mortgagee absolutely, in satisfaction of the debt, provided the conveyance be bona fide and for a fair price.
APPEAL from SURRY Fall Term, 1845; Pearson, J.
Boyden for plaintiff.
Kerr for defendant.
Trover. The only material questions that arose on the trial were: First, when the plaintiff had introduced a witness who swore (217) against her interest, whether she could offer other witnesses to disprove what the first had sworn to. His Honor decided that the plaintiff could not be allowed to discredit her witness by showing that he was a man of bad general character, but that she might prove by other witnesses that the facts were different from those sworn to by the first witness.
Secondly, whether when a man had given a mortgage to secure a debt, he could afterwards, for the consideration of the same debt, and no other, convey the same property absolutely to the mortgagee. His Honor decided that he might, provided the conveyance was bona fide.
A verdict having been rendered for the plaintiff, the defendant moved for a new trial upon the ground of error in his Honor's opinion upon the two points above stated, and also upon the ground that, in charging the jury, his Honor did not recapitulate all the testimony. A new trial being refused and judgment rendered pursuant to the verdict, the defendant appealed.
1. A party never shall be permitted to produce general evidence to discredit his own witness; but if a witness prove facts in a cause which make against the party who called him, yet the party may call other witnesses to prove that those facts were otherwise. The other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental and consequential only. Bull. N. P., 296. Lord Ellenborough (in Alexander v. Gibson, 2 Camp., 556) said: "If a witness is called and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side, and that, in this manner, his evidence may be entirely repudiated." In Friedlander v. Land, 4 B. Ad., 193, Parke, J., (218) said that a party can contradict his own witness, if he speaks to a material fact in the case against the interest of those who called him. On a collateral fact he cannot be contradicted, not only because such evidence goes to the credit of the witness, but because a multiplicity of issues ought not to be introduced.
2. It is a rule in equity not to allow the mortgagee to enter into a contract with the mortgagor, at the time of the loan, for the absolute purchase of the estates for a specific sum in case of default made in the payment of the mortgage money at the appointed time, justly considering it would throw open a wide door to oppression and enable the creditor to drive an inequitable and hard bargain with the debtor, who is rarely prepared to discharge his debt at the specified time. But even in equity the mortgagee at a subsequent time may purchase the equity of redemption, as well as a stranger, for then the mortgagor is not so much in his power, as he may himself redeem the mortgage or sell the estates mortgaged to another person and raise the money and discharge the mortgage. Coote on Mortgages, 27; 2 Freem., 258; 1 Vern., 448. And a subsequent contract of sale by the mortgagor to the mortgagee of the property in mortgage, if bona fide, is good at law against a creditor of the mortgagor. King v. Cantrel, 26 N.C. 251. An additional sum of money is not necessary to be given to make the sale bona fide. The price of the property may have fallen, and the mortgagor discharges his person from the arrest of his creditor on the mortgage debt. The substance is whether the bargain was fairly for a sale at a just and reasonable value of the property; and the question of mala fides or bona fides was fairly left to the jury in this case. The mistake made on the trial, if any, was that of the jury, and that this Court cannot correct.
(219) 3. We see no error in the manner in which the Court summed up the evidence given in the cause. If the defendant's counsel wished a more particular charge on that portion of the evidence which the judge adverted to in general terms, he should have called his attention to it by a special prayer.
PER CURIAM. No error.
Cited: Strudwick v. Brodnax, 83 N.C. 403; Gadsby v. Dyer, 91 N.C. 314.