Burke v. Burke
| Decision Date | 21 April 1913 |
| Docket Number | 309 |
| Citation | 87 A. 960,240 Pa. 379 |
| Parties | Burke v. Burke, et al., Appellants |
| Court | Pennsylvania Supreme Court |
Argued February 25, 1913
Appeal, No. 309, Jan. T., 1912, by defendants, from judgment of C.P. Lackawanna Co., Sept. T., 1909, No. 896, on verdict for plaintiff in case of William F. Burke v. Patrick Burke Julia Burke Keating and Thomas Keating. Affirmed.
Action of ejectment and for mesne profits. Before O'NEILL, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff by direction of the court for land described in the writ and judgment thereon. Defendants appealed.
Errors assigned were sustaining objection to the competency of Julia Burke Keating as a witness, and giving binding instructions in favor of the plaintiff.
The assignments of error are overruled and the judgment is affirmed.
James J. Powell, with him John P. Quinnan, for appellants. -- Julia Burke Keating was competent before filing her disclaimer Wolf v. Carothers, 3 S. & R. 240; Dickson v. McGraw, 151 Pa. 98; Lancaster County Nat. Bank v. Henning, 171 Pa. 399; First National Bank v. Gerli, 225 Pa. 256; Horn v. Petty, 192 Pa. 32.
Julia Burke Keating was certainly competent after filing her disclaimer: Africa v. Trexler, 232 Pa. 493.
Joseph O'Brien, for appellee, cited: Berger v. Berger, 44 Pa.Super. 305; Africa v. Trexler, 232 Pa. 493; Kirk v. Ewing, 2 Pa. 453; Dorris v. Morrisdale Coal Co., 215 Pa. 638.
Before FELL, C.J., MESTREZAT, POTTER, ELKIN and STEWART, JJ.
This is an action of ejectment brought by William F. Burke against his brother, Patrick Burke, his sister, Julia Burke Keating, and Thomas Keating, her husband. The summons was issued on July 10, 1909. John M. Burke, the father, is the common source of title through whom both parties claim.
From his statement and abstract of title, it appears that the plaintiff relies on a paper title consisting of a deed from his father and mother, John M. and Bridget Burke, to Patrick Burke, the defendant, dated January 7, 1892, acknowledged January 8, 1892, and recorded January 11, 1892; a deed from Patrick Burke to Bridget Burke, his mother, dated January 8, 1892, acknowledged January 9, 1892, and recorded January 11, 1892; and a deed from Bridget Burke to William F. Burke, the plaintiff, dated January 23, 1909, and recorded February 17, 1909. It is averred in the statement that all the defendants entered upon the land in question, ejected Bridget Burke from the same and continue to hold possession thereof. A claim for mesne profits is made against all the defendants.
The defense relies on title in Patrick Burke. He filed an answer in which he claims title from his father and mother through the deed referred to above. He avers that possession of the land in dispute was delivered to him in pursuance of the title conveyed by his father and mother. He denies that he conveyed the land to Bridget Burke by a deed dated January 8, 1892, as alleged in plaintiff's statement, or by any other deed, and that said deed purporting to be a conveyance of the property to his mother is not a deed made and executed by him and the same is a forgery and is fraudulent.
The sheriff returned that he served the writ on all of the defendants, "they being in actual possession of the within described premises." The defendants entered the plea of not guilty.
The controlling question in the case, as will be observed, is whether the deed from Patrick Burke to Bridget Burke, his mother, is, as averred by him, a forgery and fraudulent. On the trial of the cause the plaintiff offered in evidence the writ, the sheriff's return, the record of the alleged deed from Patrick to Bridget, the originals of the other two deeds, and then rested. Mrs. Keating having filed a disclaimer, she and Patrick were called as witnesses by the defendants but, on objection by plaintiff, the court ruled that they were incompetent to testify to anything that occurred in the lifetime of their mother, Bridget Burke, who died before the suit was brought. The defendants called John Meehan, whose name appears on the record of the deed from Patrick to Bridget, as an attesting witness and also as the justice of the peace before whom the deed was acknowledged. He was called for the purpose of showing that he did not attest the deed and that it was never acknowledged before him as a justice of the peace. This was the only evidence for the defense and the court holding it insufficient to invalidate the recorded deed, directed a verdict for the plaintiff. The defendants have taken this appeal.
The questions involved, as stated by the appellants, are: (a) The competency of Julia Burke Keating as a witness before filing the disclaimer; (b) her competency after filing the disclaimer; and (c) whether the testimony of Meehan was sufficient to warrant the court in submitting it to the jury upon the question of whether he had attested and taken the acknowledgment of the deed from Patrick Burke to Bridget Burke, his mother.
Mrs. Keating was called by the defendants for the purpose of proving that Patrick Burke's name to the deed conveying the property to Bridget Burke was signed by Nellie Burke, his sister, in the presence of John Meehan, that Patrick was not present on the occasion, and that Meehan refused to be a witness or take the acknowledgment of the deed. Mrs. Keating was a defendant, the writ had been served on her, and she had pleaded to the action. She was, therefore, clearly incompetent as a witness before filing her disclaimer. Prior to the legislation in this State making parties competent witnesses, she would have been incompetent to testify. This has been ruled time and again by this court: Lies v. Stub, 6 Watts 48; Wolf v. Fink, 1 Pa. 435; Parke v. Bird, 3 Pa. 360; Noble v. Laley, 50 Pa. 281; Karns v. Tanner, 66 Pa. 297. The witness is not disqualified on the ground of interest but from considerations of policy: Kirk v. Ewing, 2 Pa. 453; Cambria Iron Company v. Tomb, 48 Pa. 387. In the former case, ROGERS, J., delivering the opinion, says (p. 455): "There is no rule better established, than that a party to the record cannot be examined as a witness, and this not on the ground of interest, but from considerations of policy." And in the latter case, AGNEW, J., delivering the opinion says (p. 394):
There is no enabling legislation in this State which would make Mrs. Keating a competent witness before she filed her disclaimer. The Act of May 23, 1887, P.L. 158, makes all persons competent witnesses save those excepted in Section 5 of the act. Clause E of that section of the statute excepts from the provisions of the act any surviving party to a contract or any person whose interest is adverse to the right of the deceased party whose right thereto has passed to a party on the record who represents his interest in the subject in controversy. Patrick Burke and Mrs. Keating are both within this exception, and, hence, they occupy the same position so far as their competency to testify is concerned as they did prior to the passage of the Act of 1887. At the time of the trial Bridget Burke was dead. Her right to the property in question passed by her deed to her son, William F. Burke, the plaintiff, and a party to the record. Patrick Burke and Mrs. Keating are defendants in the action and in possession of the premises in dispute. Their right to retain the possession is adverse to the right or claim of the plaintiff who holds under his deceased mother. Whether they claim the title or the possession or both it is an interest adverse to the right of Bridget Burke, and brings them clearly within the exception to the statute permitting parties to testify. If the plaintiff recovers a judgment against the defendants they are all liable for mesne profits and the costs accruing in the suit. The witnesses were, therefore, incompetent to testify to anything that occurred in the lifetime of Bridget Burke.
The disclaimer of Mrs. Keating filed on the trial of the cause by the defendants did not make her a competent witness. Where one relies on a statute to establish his competency to testify, it is incumbent upon him to bring himself clearly within its provisions. Here, the defendants filed the disclaimer under Clause E of Section 5, of the Act of 1887. They, however, failed to comply with the terms imposed by the statute and, hence, the disclaimer was not effective to make the witness competent. We have already referred to the exception in Clause E of Section 5 of the act. As said in Africa v. Trexler, 232 Pa. 493, the provision of the section relative to actions of ejectment seems to be an exception to an exception. The clause in question excepting a surviving party from the provisions of the statute confers competency on any one of the several defendants in an action of ejectment if he disclaims title to the premises in...
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