Eckman v. Eckman

• Decision Date: 18 May 1871
• Citation: 68 Pa. 460
• Parties: Eckman <I>versus</I> Eckman <I>et al.</I>
• Court: Pennsylvania Supreme Court

68 Pa. 460

Eckman versus Eckman et al.

Supreme Court of Pennsylvania.

May 5 and 6, 1871.

May 18, 1871.

May 5th and 6th 1871.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Lancaster county: No. 78, to May Term 1871.

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D. G. Eshleman and D. W. Patterson, for plaintiffs in error, as to the admission of the evidence: 1 Starkie on Ev. 192, 196, 197; The Borough of York v. Forscht, 11 Harris 392; Philadelphia v. Girard's Heirs, 9 Wright 9; Noble v. McClintock, 6 W. & S. 58; Dimes Savings Inst. v. Allentown Bank, 15 P. F. Smith 116.

The court misled the jury by submitting to them as facts proven, matters about which there was no evidence which is error: Snyder v. Wilt, 3 Harris 59; Herdic v. Bilger, 11 Wright 60; Burford v. McCue, 3 P. F. Smith 427; Updegraff v. Rowland, 2 Id. 317: and they still further injured the plaintiff in error by basing a string of ingenious presumptions upon those alleged facts which had no existence in the case. It was the duty of him who alleged delivery of the deed to prove the fact: Bickham v. Smith, 5 P. F. Smith 337; Kelly v. Kauffman, 6 Harris 351.

Where there is some evidence of a material fact it is the duty of the court to submit it to the jury: Cole v. Bolard, 10 Harris 431; Fitzwater v. Stout, 4 Id. 22. As to the revocability of the deed: Turner v. Scott, 1 P. F. Smith 126; Perry v. Scott, 1 Id. 120; Miller v. Casselbery, 11 Wright 378; Frederick's Appeal, 2 P. F. Smith 338.

Franklin, for defendant in error.—As to the delivery: Doe dem. Garnons v. Knight, 5 Barn. & Cress. 671; Stephens v. Huss, 4 P. F. Smith 20. A deed cannot be delivered to a grantee as an escrow: 3d Cruise's Dig., 30, Deed, Chap. 2, § 58; Thoroughgood's Case, 9 Reports 136; Simonton's Estate, 4 Watts 180. In the absence of fraud, the validity of a deed cannot be impeached by proof of non-payment of the consideration-money therein mentioned: Wilt v. Franklin, 1 Binn. 518. Since the passage of the Statute of Uses, courts have recognised the validity, force and effect of deeds of this character: Wilkinson v. Tranmer, 2 Wilson 75; Milburn v. Salkeld, Willes' Rep. 670; Fisher v. Strickler, 10 Barr 348; 3 Cruise's Dig. part 4, 186, &c. As to the revocability of the deed: Greenfield's Estate, 2 Harris 489; Ritter's Appeal, 9 P. F. Smith 9.

The opinion of the court was delivered, May 18th 1871, by SHARSWOOD, J.

The first three assignments of error are not according to Rule VIII., 6 Harris 578, and must therefore be dismissed. We may say, however, as matter of grace and not of right, that the plaintiff in error suffers nothing by these errors not having been properly assigned. Benjamin Eckman claiming in this ejectment as the devisee of Daniel Eckman, who was the plaintiff in the equity suit, the record of that suit was clearly evidence against him as privy in estate; and this being so, the testimony of Daniel Fulton, taken in that proceeding, was also admissible. It is within the letter and spirit of the Act of March 28th 1814, 6 Smith 208, which declares "that any deposition taken or to be taken in any cause which, by the rules of law, may be read in evidence in the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the same parties or persons, their heirs, executors, administrators or assigns." The subject-matter of that suit was the title to this land, and the particular question involved the same as here, the delivery of the deeds — Daniel Eckman to Benjamin Eckman and Daniel B. Eckman, dated September 6th 1859; and Benjamin Eckman is the assignee in law of Daniel Eckman. We have had more difficulty as to the admissibility of the opinion of the court in that case. It was properly perhaps no part of the record. But it seems to fall within the decisions in Carmony v. Hoober, 5 Barr 305, and Coleman's Appeal, 12 P. F. Smith 252, that such an opinion may be resorted to as evidence that the decree or judgment was upon the merits and not upon any incidental or collateral question. No point was made below as to the effect of the decree — whether it was a decision upon the main question and conclusive — nor has such point been raised in this court. Had the plaintiffs in error wished to exclude the opinion so far as it respected the statement of facts, they should have requested the court to charge that though admitted and read in the cause for another purpose, it was no evidence of any fact, and in that point of view was to be dismissed from their consideration.

The 4th, 5th and 6th points complain of the charge of the court and may be considered together. The learned judge below was of the opinion that the weight of the evidence was in favor of the delivery of the deed. This court thought so upon the same testimony in Eckman v. Eckman, 5 P. F. Smith 269, and we all agree in thinking so now. The opinion of the judge below was indeed very strongly expressed to the jury, but they were explicitly told at the same time that the question was for them to decide. We cannot say that there was any abuse of the discretionary power of the court to express their opinion upon the sufficiency of the evidence or that the jury were misled. In stating the evidence of Messrs. Amwake and Strohm, the learned judge may have been mistaken in attributing to them what was only a legitimate inference from their testimony. It was really immaterial what their opinions may have been on the question of the goodness of the deed: the important bearing of their testimony was the almost necessary, nay, inevitable inference that the two brothers had consulted them together without raising any objection to the deed on the score of its non-delivery. If there...