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472 MICHIGAN LAW REVIEW 

templation of the statute." Many well known authorities are cited as sus- 
taining the rule announced. Corson, P. J., dissenting, cites Moelle v. Sher- 
tvood, 148 U. S. 21 ; United States v. California &c. Land Co., 148 U. S. 31, 
and Boynton v. Haggart, 120 Fed. Rep. 819, 57 C. C. A. 304. 

The deed involved in the principal case is the ordinary quitclaim deed. 
It is not one of those that may be said plainly to give notice by their terms 
of the doubtful character of the title — as, for example, where the grantor 
conveys "such interest only as he now has, whatever that may be, in the 
aforesaid lands" {Va. & Tenn. Coal &c. Co. v. Fields, 94 Va. 102), nor on 
the other hand is it one of those that, while quitclaim deeds in general form, 
yet purport by their terms to convey the whole estate in the real property 
particularly described (^Wilhelm v. Wilken, 149 N. Y. 447), so that questions 
sometimes discussed in cases of this character are not involved. 

The doctrine that the form alone of the ordinary quitclaim deed affects 
the purchaser under it with notice which prevents his being a purchaser in 
good faith while supported by recent decisions in many states, "does not," as 
Mr. Justice Field says in Moelle v. Sherzvood, "seem to rest upon any sound 
principle." That courts should deprive the grantee in such a deed of the 
protection of the recording acts, without regard to his actual good faith, and 
for the benefit of one who has negligently failed to record the evidence of his 
title, seems in accord neither with the spirit of the registry acts nor with the 
principles by which courts are ordinarily controlled. While quitclaim deeds 
are often obtained for speculative purposes the true test of their effect should 
be the fact of a purchase in good faith. Merrill v. Hutchinson, 45 Kan. 59, 
Babcock V. Wells, 25 R. I. 23. 

Recent statutes in some states have abrogated the extreme doctrine that 
a grantee in a quitclaim deed is charged with bad faith as a presumption of 
law ; in Maine, for example, it is provided (L. 1903 ch. 220) that conveyances 
of the right, title or interest of the grantor, if duly recorded, shall be as 
effectual against prior unrecorded conveyances, as if they purported to 
convey an actual title ; and in North Dakota (L. 1903 ch. 152) that the fact 
that the first recorded conveyance of a subsequent purchaser for a valuable 
consideration is in the form of a quitclaim deed, shall not affect the question 
of good faith or be of itself notice to the grantee of any unrecorded con- 
veyance. 



Competency of a Child as a Witness. — Appellant was convicted of rape 
on a child of the age of seven years. Upon the trial the appellant objected 
to the admission of the testimony of the prosecutrix against him for the 
reason that the evidence showed that the witness was only seven years of 
age, and as article 34, Penal Code, 1895, provided that no person could be 
punished for any offense committed before he or she arrive at the age ot 
nine years, the witness could not take the oath subject to the pains and pen- 
alties of perjury, as required by the state constitution. After exception taken 
by appellant the prosecutrix was permitted to testify. Held, error, although 
Brooks, J., filed a dissenting opinion. Fr easier v. State (1904), — Tex. 
Crim. App. — , 84 S. W. Rep. 360. 



NOTE AND COMMENT 473 

The ancient rule of the common law appears to have been that no infant 
under the age of nine years could be sworn {Commonwealth v. Hutchinson, 
ID Mass. 225 ; State v. Bdvcwds, 79 N. C. 648) ; but the rule does not seem 
to have been well established, for in Brasier's Case (1779), i Leach C. C. 
(3rd ed.) p. 237, it was ruled that no testimony whatever can be received 
except upon oath, and that an infant though under the age of seven years 
may be sworn in a criminal case provided such infant, upon strict examina- 
tion by the court, possess sufficient knowledge of the nature and consequences 
of an oath. If the rule as first stated was ever well established it has since 
fallen into disuse and become obsolete. Intelligence, ability to comprehend 
the meaning of an oath, and the moral obligations to speak the truth, and not 
age, are the tests by which the competency of a child to give testimony is 
determined. And when it appears that the witness is so qualified he should be 
admitted to testify, no matter what his age. Wheeler v. U. S., 159 U. S. 523; 
White V. State, 136 Ala. 58; Minton v. State, 99 Ga. 254; State v. King, 117 la. 
484; State V. Wilson, 109 La. 74; Trim v. State, — Miss. — , 33 So. Rep. 718; 
State V. Scanlan, 58 Mo. 204. And this is so even where there is a statute 
making infants not punishable with perjury. Johnson v. State, 61 Ga. 35. 
The tests as to competency vary; some courts holding that in addition to a 
competent amount of understanding, the witness must have received such a 
degree of religious instruction as will enable him to^comprehend the moral 
obligations imposed upon him by the oath. State v. Belton, 24 S. C. 185; 
State V. Michael, 37 W. Va. 565. Others hold the witness competent if able 
to give intelligent answers although ignorant of God and the Bible. White 
V. Commonwealth, 96 Ky. 180; State v. Levy, 23 Minn. IQ4. By statute in 
some states it is provided that where an infant is of tender years and does 
not understand the nature of an oath, but has general intelligence, he may 
at the. discretion of the presiding judge be permitted to testify, without being 
sworn. Michigan, C. L. 1897, § 10215. People v. Walker, 113 ' Mich. 367, 
New York, Code Crim. Pro. I 392 ; People v. O'Brien, 74 Hun. 264. The 
question of competency is for the trial court {State v. Doyle, 107 Mo. 36; 
People V. Stouter, 142 Cal. 146; Castleberry v. State, 135 Ala. 24) ; and will 
not be reviewed except in cases of an abuse of discretion, or a manifest mis- 
apprehension of some legal principle. Peterson v. State, 47 Ga. 524 ; Ridenhour 
V. Kansas City Cable Ry. Co., 102 Mo. 270; Shannon v. Swanson, 208 111. 52. 

Art. I, § 5, of the constitution of Texas provides that "all oaths or affir- 
mations shall be administered in the mode most binding upon the conscience, 
and shall be taken subj«ct to the pains and penalties of perjury." The penal 
code enactment has already been given. Under these provisions it would 
seem, and the principal case holds, that the testimony of a child under nine 
years of age in a criminal case is incompetent, and a conviction based in 
whole, or in part, upon such testimony cannot be sustained. That a deplor- 
able situation arises under this state of facts cannot be denied. It is equally 
true that the courts cannot give relief, but that any relief must come through 
legislative enactment or amendment of the constitution. The words are plain ; 
there is no ambiguity of language and therefore the courts are given no oppor- 
tunity to put any construction upon the language other than the meaning 



474 



MICHIGAN LAW REVIUW 



apparent on the face of the instrument. Lake Co. v. Rollins, 130 U. S. 662, 
670. The courts of Texas have apparently not been consistent in their 
decisions relative to the competency of children to testify under oath, for in 
Reyna v. State (1903), — Tex. Crim. App. — , 75 S. W. Rep. 25, and in 
Click v. State (1902), — Tex. Crim. App. — , 66 S. W. Rep 1104, children 
below the age of eight years were permitted to testify under oath. An exam- 
ination of the statutes and constitutions of many of the states fails to disclose 
like statutory provisions except in Illinois, where it is provided (Starr & 
Curtis Ann. St. Vol. 2, p. 2825, 1[ 5) that all oaths shall be taken subject to 
the pains and penalties of perjury; that no person below the age of ten years 
shall be convicted of a-crime or misdemeanor (Starr & Curtis Ann. St., Vol. 
i> P- I3S7> H 462) and yet the testimony of children under this age is there 
received unchallenged. Shannon v. Swanson, supra. 



Compensation for Partv Wai,i,s as Between Subsequent Grantees. — 
In the recent case of Loyal Mystic Legion et al. v. Jones (1905), — Neb. — , 
102 N. W. Rep. 621, the facts were that a party wall had been erected under 
an agreement between the builders and their adjoining lot owner, which 
provided -that the wall should be one-half upon the lot of each party and that 
the adjoining owner — the non-builder — "his heirs, exectltors, administrators or 
grantees" might use the wall for any building he "or his grantees may erect," 
provided that he "or his grantees before proceeding to join any other build- 
ings to the said party wall and before making any use thereof or breaking 
into the same should pay or secure to be paid to said parties of the first part 
[the builders] or their grantees one-half of the actual cost of said party wall 
or so much thereof as shall be joined or used as aforesaid." This agreement 
having been executed, acknowledged and recorded, the lots were conveyed to 
others by the contracting parties and the question before the court was 
whether, when the wall was used by the present owner of the non-builder's 
lot, compensation should be made to the present owner of the builder's lot 
or to an assignee of the original builder. It was held that, as the contracting 
parties intended "that whoever became the owner of either lot should stand 
in the shoes of the makers of the party wall agreement, with respect to its 
provisions," the present second builder should compensate the first builder's 
successor in title. 

In arriving at this conclusion, however, the principles of covenants running 
with the land are expressly disregarded by the court, reliance being placed 
upon the provision in the agreement that the money for the use of the wall 
should be paid to the builders or "their grantees," the court saying, "it is not 
necessary to say that the personal obligation to pay for the wall runs with the 
land in order to carry into effect the provisions of the contract under consid- 
eration." And particular emphasis is laid upon the fact that the present 
agreement names "grantees" instead of "assigns" — the latter term being said 
by the court to be appropriate to transfers of personalty rather than realty. 
But this latter distinction seems unnecessary in the consideration of such 
cases for the term "assigns" has been used from early times as applicable to