¶1The plaintiff’s claim is that she loaned to hórvson the property in: disputethat the title was to vest-in the' defendant subject to termination in case- she remarried. This arrangement w'a,s made by- tlieplaintiff in the presence of her son. and Ms wife-whó is-the defendant.
¶2If this is the correct version, the- defendants derived no .title or-■interest from her husband.- He,was' ih'pOsfeessioMto look after the.property for his mother without the suggestion-' oT ownership. The-defendant, therefore, acquired her defeasible title wholly from the-*409plaintiff by virtue of the arrangement with her. The test in excluding testimony is: Was the title derived from the deceased person ? Here it was not. The son had no title or interest to transfer. He was simply “ taking care ” of the plaintiff’s property. . As I view it, section 829 of the Code of Civil Procedure has no application whatever to the case. The defendant is liable for the return of this property because she accepted it with the understanding that she would surrender it upon the happening of a certain contingency which has occurred. This proposition was made to her and she acquiesced in it, The fact that her possession came through another who held by favor of the donor, but without title, does not bring the plaintiff within the inhibition of the statute because, forsooth, this intermediate possessor is dead.
¶3If the possession in such person was to continue for five years, and the arrangement had been with him alone, the talk with him by which it' was consummated would not have been competent against the defendant unless she knew of the plan and accepted title with knowledge. That is true whether the intervening possessor is dead or alive. In this case the testimony is admissible because the defendant was a party to it and obtained title by reason of it.
¶4This action is brought by one party to a contract against the other to recover for the conversion of certain property. The person who had its temporary custody was present at the making of the contract and agreed in effect to turn the property of the plaintiff over to the donee. This custodian is dead. It cannot be possible that his death prevents the owner from testifying "to the agree- ' ment with the defendant through which the latter acquired all the title which ever came to her.
¶5If in the conversation which occurred between the plaintiff, her son and the defendant, the property had been delivered at once to the defendant the plaintiff would not have been precluded from showing what took place because the son happened to be present. Does it alter the rule because the son was the bailee of the property ? The pith of the transaction is that defendant’s interest was derived from the plaintiff. The statute is an exception to the general rule which permits a party to an action to testify "in his own behalf. It should not receive a strained construction. The. purpose *410of it is to prevent one party to a contract or arrangement from obtaining an undue advantage by giving his version of the transaction where the other participating party is dead. Here both are alive, and hence on- an equal footing. The husband of the defendant who was present at the making of the agreement is dead, and it is sought to exclude the plaintiff because the husband took part in the talk and the arrangement was substantially made with him in the presence of the defendant and for her benefit and with her approval. This drastic narrowing of the statute would make it a sword instead of a shield to protect one who cannot give, his narration of the transaction.
¶6There is no distinction between title or interest in this case. Whatever right the defendant has came from the plaintiff. The language of the section referred to is made to cover either title or interest. That is essential because a person may have an interest not attaining to the dignity of a title in its strict sense yet sufficiently important to found a cause of action or defense. That is not this case. The title and interest here are one and the same.
¶7The judgment should be affirmed,, with costs.
¶8Judgment and order of County Court reversed and new trial ordered, with costs to abide, event.