Gehr v. Fisher
| Decision Date | 05 October 1891 |
| Docket Number | 50 |
| Citation | 22 A. 859,143 Pa. 311 |
| Parties | MARY GEHR ET AL. v. AUSTIN FISHER ET AL |
| Court | Pennsylvania Supreme Court |
Argued March 2, 1891
APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF BERKS COUNTY.
No. 50 January Term 1891, Sup. Ct.; court below, No. 98 May Term 1887, C.P.
On April 29, 1887, Mary Gehr and others, heirs at law of Baltzer Gehr, deceased, brought ejectment against Austin Fisher and others, for the undivided one third of two hundred and thirty-one acres of land in Maxatawny township. The defendants pleaded not guilty.
In a prior action of ejectment for the same property, Baltzer Gehr, the plaintiffs' father, recovered a verdict and judgment: Sitler v. Gehr, 105 Pa. 577. The defendants in that action afterward brought ejectment against the heirs of Baltzer Gehr, who had died in the meantime, and recovered judgment therein: Gehr v. Miller, 20 W.N 387. In each of those actions, as well as in the present, the question for determination was whether or not Baltzer Gehr was one of the heirs of Catharine Geehr, who died May 10 1877, intestate, unmarried and without issue, seised in fee of the land in question.
At the trial, on December 2, 1889, testimony was presented substantially to the same effect as in Sitler v. Gehr, supra. Catharine Geehr's grandfather was Balser Geehr of Berks county. The plaintiffs claimed that their father, Baltzer Gehr, who was the son of Joseph Gehr, formerly of Lancaster county and later of Crawford county, was a nephew of Balser Geehr of Berks county. If this were the fact, the plaintiffs would have title to the undivided one third of the land in dispute. To prove it, the plaintiffs made offers to show by the testimony of Baltzer Gehr, Solomon Gehr, and Samuel Gehr taken in the first ejectment, that the mother of Baltzer Gehr, and several other members of his family, all of whom were deceased, had made declarations, prior to the commencement of this controversy, tending to show that Balser Geehr, of Berks county, was the uncle of Baltzer Gehr of Crawford county. Each of these offers was objected to upon the ground that, before such declarations could be admitted it must be proved by evidence aliunde, to the satisfaction of the court, that the declarant was connected with the family of Balser Geehr, of Berks county. In each instance the court overruled the objection and admitted the testimony; exceptions. to
Cyrus Gehr, a grandson of Baltzer Gehr, being upon the witness stand, the plaintiffs proposed to prove by the witness that he had conversations with Baltzer Gehr, now deceased, about the time of the late civil war, long before this dispute originated, and before Kitty Geehr died, and that in those conversations the said Baltzer Gehr described to the witness his family, told him that he was named after his uncle Baltzer Geehr, a brother of his father, Joseph Gehr, who lived near the Longswamp, in Berks county, Pennsylvania, and who had been a gunsmith by trade; that at the time of the whiskey insurrection he had gone to the camp with his father and mother and his uncle Baltzer, after whom he was named; and that the said Baltzer Gehr also talked to him about his other uncles, brothers of Baltzer Geehr, of Berks county, called Philip and Samuel.
Mr. Green: The defendants object (1), on the ground that it is hearsay evidence of the real plaintiff himself in this case, and is intended to supplement Baltzer's deposition in his lifetime, notwithstanding said Baltzer Gehr testified fully in reference to his relationship in the deposition already read in evidence: (2), the testimony is generally incompetent.
By the court: We think we will admit this and give the defendant an exception.
The witness then testified to the matters set out in the offer.
Among the persons whose declarations, as to the existence of a relationship between Baltzer Gehr, of Crawford county, and Balser Geehr of Berks county, were shown by the plaintiffs, was John Gehr. Solomon Gehr, of Crawford county, the witness who testified to the declarations of John Gehr, stated that this John Gehr was the father-in-law of the witness and was a son of Jacob Gehr, and a nephew of Baltzer Gehr; that he was born in 1784 and died in 1853. Asa Gehr, another witness for the plaintiffs, testified that Jacob Gehr, an uncle of the witness and a brother of Baltzer Gehr, lived in Crawford county, about twelve miles west of Meadville, and had a son named John, and testified further as follows:
The defendants, having called Jacob C. Geehr, who was grandson of Philip Geehr, a brother of Balser Geehr of Berks county, made the following offer:
The defendants offer to prove by the witness that about 1846 or 1847 he visited Meadville, in Crawford county, where he remained about a year; that while there with his relatives on his mother's side, the Smull family, he became acquainted with a number of the Gehrs; that he attended the funeral of Jacob Gehr, who lived west of Meadville twelve or fourteen miles, and that while at the funeral he met John Gehr and Joseph Gehr; that John Gehr was a person between fifty and sixty years of age, whom he met and had a conversation with him in reference to their relationship; that he explained to John Gehr that he had a grandfather in Berks county by the name of Philip Geehr, and that Philip Geehr had a brother by the name of Balser Geehr, and also a brother by the name of Samuel Geehr, who died long ago; and that John Gehr, after having heard this statement of the relationship of the witness, said that their family were not related to any of those people: these are offered as declarations of John Gehr, who is deceased, and are directly contradictory of what Solomon Gehr has testified as having heard John Gehr say; it having already been testified by Asa Gehr, plaintiff's witness, that Jacob Gehr lived at that place, and had two sons, John and Joseph Gehr, and lived about twelve miles west of Meadville, and there was no other John Gehr excepting Captain John Gehr, who is still living, and a son of Baltzer Gehr, of Crawford.
Plaintiffs object, because the offer is irrelevant, immaterial and indefinite.
By the court: Objection sustained; exception.
Baltzer Gehr having testified, in his deposition, that his father, Joseph Gehr, who died about 1798, aged between fifty and sixty years, was the brother of Balser Geehr, of Berks county, and was the youngest of that family, the defendants made an offer, designed to discredit his testimony by showing that his father must have been much older than Balser Geehr's sister, Mrs. Michael Croll. Joseph Kutz had testified that the grandfather of the witness was a brother of Balser Geehr, and had two sisters, Mrs. Croll and Mrs. Bast, whose first names the witness was unable to give, but whose husband's names were Michael Croll and Dewalt Bast, and that Mrs. Croll was buried at the Smoke Church near Hamburg. Jonas Kohler, another witness, had testified that he knew a certain Mrs. Croll, who died in 1832 and was buried at the Smoke Church, now St. Paul's; that she was called Margaret Croll, and the witness had heard her called Mrs. Michael Croll. The offer of the defendants, above mentioned, was as follows:
Mr. Snyder: It having been testified by Joseph Kutz that the sister of his grandfather, Margaret Croll, wife of Michael Croll, lived in Greenwich township and was buried, as much as he knows, at the Smoke Church, near Hamburg, and it having been further testified by Jonas Kohler that Margaret Croll, wife of Michael Croll, was buried in 1832 at the church of Lebanon with the nickname of Smoke Church, now St. Paul's, the defendants propose to prove that the said Margaret Croll was buried in 1832, at a church within two miles or two miles and a half of Hamburg, and propose to give in evidence the record on the tombstone; this for the purpose of showing that she was Mrs. Margaret Croll, wife of Michael Croll, the date of her death and age, and that there is no tombstone showing any such burial at the Smoke Church.
Mr. Hiester: The plaintiffs object, (1) because the tombstone, whose inscription it is proposed to read, has not been shown to have been the tombstone of Mrs. Croll, sister of Baltzer Geehr; (2) because the evidence is irrelevant and immaterial.
By the court: Objection sustained; exception.
Baltzer Gehr had testified that among the brothers of his father, Joseph Gehr, were Andrew, John and Paul; that his father lived on Paul's land in Cocalico township, Lancaster county; and that the witness did not recollect the name of his paternal grandfather. It had been shown by other testimony that the father of Balser Geehr, of Berks county, was Conrad Geehr. For the purpose of showing that Joseph Gehr and his brothers Andrew, John and Paul, were sons of John Gehr, and therefore could not be brothers of Balser Geehr, the defendants made the following offer:
Mr Snyder: Baltzer Gehr testified that his father's name was Joseph Geehr and that he lived in Cocalico township, Lancaster county, having prior to 1782 lived on his brother Paul's land, and that his father had three brothers, Andrew, John and Paul, and two sisters, Mrs. Ginter and Catharine, the defendants now offer: (1) A mortgage dated November 21, 1757, John Geehr, Sr., of the county of Lancaster, of the one part, and Paul Geehr and Andrew Geehr, both sons of the said John Geehr, of the second part. (2) A mortgage dated November 22, 1760, from John Gehr, Jr., and George Gehr, single men, to John Gehr, Sr. (3) A deed...
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