the sole and absolute owner thereof after paying the bond to Baxter; that Gillett had no interest whatever, in the premises; has neither advanced any thing, nor set up any claim thereto, and no such claim is established or proved, by any testimony; that, on the sale to Doolittle, whatever interest in the premises existed,over and above paying the bond to Baxter, and the account of Baxter & Edmunds, which was agreed should be paid by Leslie, who held the bond, did in equity belong to Scott, and the orator is entitled thereto, and that there is no evidence whatever, that any payment had been made of the note given to Gillett before the filing of the bill.

On the principle that equity will aid a judgment creditor to reach the equitable interest of his debtor, when payment of his debt cannot be obtained at law, we think a decree should be made for the orator for the amount of the note given by Baxter & Edmunds to Gillett, out of the purchase money on the sale to Doolittle, which is four hundred dollars, with the interest from March, 1835, and the cause will be transmitted to the chancellor to make a decree accordingly. No costs will be decreed, against Baxter, in this case, as there is no evidence to implicate him in any fraud or any attempt to conceal the property of Scott, and he may have thought he was fully justified in executing this note to Gillett, and would not be justified in paying the same to the orator without a decree of this court. Scott and Gillett will be decreed to pay cost.

ORLEANS,
March,
1842.
Woods

v.

Scott et al.

LAMOILLE COUNTY.

APRIL TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

SAMUEL A. WILLARD, Administrator of the estate of AARON FARMER V. AMOS STRONG and ELEAZER STRONG.

If two persons own different portions of the same lot, either in common or severalty, and one pays a land tax on the part he owns, and the other suffers his part to be bid off at vendue and takes a vendue title, he thereby acquires a title only to the land he previously owned, and if his interest had been previously severed, in fact, such vendue title does not again make him a tenant in common.

EJECTMENT, to recover the seizin and possession of two hundred acres of land in Hydepark, being the third division set to the right of William Reed.

Plea, not guilty. Issue to the court.

On the trial in the county court, it was admitted that the title of Reed to the land had come to Farmer, the plaintiff's intestate, and that the defendant, Eleazer Strong was in possession under Amos Srong, the other defendant, at the time of the commencement of this suit.

The defendants gave in evidence a deed from Farmer to Fanny Phillips, wife of George Phillips, dated March 7,

v.

Strongs.

1822, conveying seventy-five acres of the right of said Reed, LAMOILLE, April, the original grantee, "to be of an average quality with the 1842. land in said tract;"-also a deed from George Phillips to Willard adm. Breed Noyes, dated April 21, 1831, conveying to Noyes of Farmer seventy-five acres of land, describing it as the same land conveyed by Aaron Farmer to Fanny Phillips on the 7th day of March, 1822, and as "being the same farm where I have lived for more than six years past, and now live ;”—also, a deed from said Noyes to Amos Strong, one of the defendants, dated February 4th, 1832, conveying the same land deeded by Phillips to Noyes;-also a deed from Abner Flanders, collector of a land tax, granted in 1831, to said Noyes, dated July 22, 1834, conveying "seventy-five acres of the third division of William Reed," in Hydepark. The vendue title, under Flanders, was admitted to be legal to convey the land described in Flanders' deed to Noyes.

The plaintiff then read in evidence a receipt from said Flanders, as collector, to the plaintiff, as administrator of Farmer, of the four cent tax on one hundred and twenty-five acres of the third division of the original right of William Reed, in Hydepark, granted at the session of the legislature held in 1831.

The defendants contended that they were entitled to hold the land deeded to Fanny Phillips, and seventy-five acres more under the deed of Flanders, as collector. But the county court decided that the vendue title, under Flanders' deed to Noyes, must be taken to apply to the seventy-five acres conveyed to Fanny Phillips by the plaintiff's intestate, and rendered judgment for the plaintiff to recover the remaining one hundred and twenty-five acres of the right of Reed. The defendants excepted to the decision.

After argument by J. Sawyer, for the defendants and Willard & Poland for plaintiff,

The opinion of the court was delivered by

WILLIAMS, Ch. J.-But one question legitimately arises on the bill of exceptions in this case, although another has been argued. The defendants contend that they are entitled to hold the seventy-five acres deeded to Fanny Phillips by Farmer, and also seventy-five acres more, as deeded to him

Willard adm. of Farmer

D.

Strongs.

LAMOILLE, by the collector, Flanders, and requested the county court April, 1842. so to decide. This they now insist upon, and also, that they were tenants in common with the plaintiff, and that no ouster was shown. It is very clear that the request of the defendant could not have been complied with. The plaintiff paid the tax on the whole right, except seventyfive acres, and Noyes could have acquired a title to only seventy-five acres. It was his duty to pay the tax, as it was an incumbrance on the land when he sold to Strong. He acquires nothing against the plaintiff, by permitting the land to be sold for the tax, and being himself the purchaser. The county court were, therefore, right in refusing the request of the defendants and permitting a recovery by the plaintiff of all but the seventy-five acres, if they had sufficient evidence of an ouster by the defendants, and whether they had such evidence or not does not appear in the bill of exceptions. It may be remarked that, by the deed from Farmer to Fanny Phillips, she became the owner of seventy-five acres in common with him, and that a division or partition in fact had been made between them, more than fifteen years before the commencement of this suit. Phillips, at the time he deeded to Noyes, describes the seventy-five acres, as a farm on which he had lived for more than six years. The payment by the plaintiff of the tax on one hundred and twentyfive acres, could only be applied on the land he owned, which was precisely that quantity of land in that division, and this left the other seventy-five acres for Noyes either to pay or bid off. But, in either case, his payment, or bid could only apply to the land he owned, and whether it was in common or in severalty would not justify him in entering upon the other part of the lot to the exclusion of the plaintiff. The judgment must, therefore, be affirmed.

LAMOILLE, April, 1842.

JOHN SCOTT v. THOMAS HOOPER.

A person who believes that there is no God, is not a competent witness.
To prove this it is competent to show his settled and previous declarations
on the subject.

Though the witness may have been for this reason incompetent, yet if the
objection has been removed by a change of views, he should be examined,
and whether there has been a change is a question of fact for the county
court, and is not matter of error.

ASSUMPSIT, on a promissory note. Plea, non-assumpsit. Issue to the country.

On the trial in the county court, the execution of the note declared on was admitted.

The defendant then called Moses Page, as a witness to prove that the note had been paid before the commencement of this suit. The defendant objected to his being sworn, alleging that Page did not believe in the existence of a Supreme Being. To establish this, the defendant introduced testimony proving that Page had, on different occasions, and with apparent seriousness, declared that he did not believe in the existence of a God. These declarations were made by Page several months previously to the time of the trial. The plaintiff proved, by one of the witnesses introduced to establish these facts, that, during the term when this action was tried, Page told the witness that he did not then believe there was no Supreme Being. This was said upon Page being informed that the witness would be called upon to testify to Page's previous declarations. From these facts the county court decided that Page could not be sworn as a witness, and, to this decision, after a verdict and judgment for the plaintiff, the defendant excepted.

S. Wires, for defendant.

The case presents two questions for the consideration of the court.

1. Whether the disbelief of a witness in the existence of a Supreme Being, renders him incomptent to testify.

It is insisted that it does not. All the authorities upon this point, which tend to sustain that position, it will be observed, make no distinction between a "disbelief in the ex

Scott

v.

Hooper.