Arthurs v. King

• Decision Date: 01 October 1877
• Citation: 84 Pa. 525
• Parties: Arthurs <I>versus</I> King <I>et al.</I>
• Court: Pennsylvania Supreme Court

84 Pa. 525

Arthurs versus King et al.

Supreme Court of Pennsylvania.

June 8 and 9, 1877.

October 1, 1877.

June 8th and 9th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Clearfield county: Of January Term 1876, No. 85. Certified from the Eastern District.

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G. R. Barrett and J. B. McEnally, for plaintiffs in error.—The testimony of Boyer and Bascom in regard to matters that occurred in the lifetime of Zimmerman should not have been admitted: Karns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 Id. 27.

The "Reisinger improvement" did not render the land seated and the court should have so instructed the jury. The soil had certainly returned to a state of nature. With neither permanent residence, cultivation nor any sign of either existing on the tract for years, the assessor could not have been justified in returning it seated, and the instruction of the court was too broad and was calculated to mislead the jury.

Wallace & Krebs and G. A. Jenks, for defendants in error.— Neither Boyer nor Bascom had sufficient interest in the result of the action to exclude their testimony under the Act of 1869.

The charge of the court properly submitted to the jury to determine whether the "Reisinger improvement" was so abandoned as to unseat the land.

Mr. Justice STERRETT delivered the opinion of the court, October 1st 1877.

The land in controversy was claimed by the plaintiff under three separate titles, one of which was based on the deed of Henry Zimmerman's executor. This deed was regularly executed in pursuance of the authority contained in the last will and testament of Zimmerman, in whom it is admitted the title was vested in 1850. If he continued to own and died seised of the land, the executor's deed was sufficient to vest title in Arthurs, the plaintiff. To meet the title thus exhibited, the defendant undertook to prove that Zimmerman sold and conveyed the land in his lifetime; that in 1852, he verbally agreed to sell to David P. Boyer, by whom the purchase-money was afterwards paid, and at whose request a deed was executed to George Bascom, under whom the defendant has been in possession. The deposition of Boyer was admitted for the purpose of proving his parol agreement with Zimmerman; the payment of the purchase-money and subsequent execution of the deed and delivery of the same to Boyer, to be held for Bascom, until the purchase-money due from him to Boyer was paid. There was also evidence tending to show that the plaintiff purchased with notice of the sale to Bascom. The deed to him was endorsed on the deed by which Zimmerman acquired his title and was seen by the plaintiff in the possession of the executor at the time he purchased. It was held by this court, on a former writ of error, that if the deed to Bascom was shown to the plaintiff before he completed his purchase from the executor, it was sufficient to put him upon inquiry as to Bascom's title, and if he neglected to make such inquiry he cannot claim to be an innocent purchaser without notice. In view of the fact that the deed to Bascom was found in the possession of Zimmerman's executor, it was all important for the defendant to prove that it had been delivered, in Zimmerman's lifetime, to Bascom or to some one for him. For this purpose the testimony of Boyer was mainly relied on, and the admission of his deposition forms the subject of the seventh assignment.

While Boyer was not a party to the suit he appears to have been interested in the result. By the terms of his agreement he was bound to make title to Bascom, but instead of procuring a deed from Zimmerman to himself and then conveying to Bascom, he alleges that for the purpose of saving expense he obtained the deed directly from Zimmerman to Bascom and retained it in his own possession as security for the residue of purchase-money. His right to the purchase-money due him depended on sustaining the title which he had thus procured for Bascom. If that failed on the ground that the deed was not delivered, to that extent would Boyer be the loser. Before the passage of the Act of April 15th 1869, he would have been incompetent on the ground of interest, and we cannot see that he is in any better position since. The subject-matter of the controversy or thing in action was the title to the land which Boyer claims to have purchased by parol from Zimmerman and for which he afterwards procured the conveyance in favor of Bascom. Boyer is one of the parties to the transaction. Zimmerman, the other party, is dead, and whatever rights he may have had passed by the executor's deed to the plaintiff, who now represents the deceased in the title. In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased, stand on an unequal footing as to knowledge of the transaction occurring in the lifetime of the deceased: Karns v. Tanner, 16 P. F. Smith 297. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it, when the opposite party is dead and his...