Gibblehouse v. Stong

• Decision Date: 30 March 1832
• Citation: 3 Rawle 437
• Parties: GIBBLEHOUSE and Another v. STONG.
• Court: Pennsylvania Supreme Court

3 Rawle 437

GIBBLEHOUSE and Another v. STONG.

Supreme Court of Pennsylvania.

March 30, 1832

IN ERROR.

The declarations of a person while holding the legal title to an estate, that he was merely a trustee for another, who had paid the purchase money, are admissible in evidence against those claiming under him, although he be, at the time such declarations are offered in evidence, in full life, within the reach of the process of the court, and capable of being examined as a witness.

THE record of this case having been returned on a writ of error to the court of Common Pleas of Montgomery county accompanied by a bill of exceptions to the rejection of evidence by the court below, it appeared that Frederick Stong, the defendant in error, brought an ejectment against the plaintiffs in error, John Gibblehouse and John Brandt, to recover two lots of ground in Whitpain township, one of them containing three quarters of an acre, with a dwelling house, and other buildings erected on it, and the other containing five acres. The plaintiff below claimed under a deed dated 1st of April, 1813, from David Johnson, in whom it was admitted the legal title to both the lots was vested, one of them by deed dated the 1st of April, 1811, from S. Slingluff, and wife, the other by deed dated the 13th of May, 1811, from Samuel Ashmead to him. Gibblehouse was the tenant of Brandt, who alleged that David Johnson was the mere trustee of his brother Edward Johnson, for whose use he held the legal title to the lots in dispute, and that he Brandt, had purchased them as the property of Edward Johnson at a sheriff's sale under an execution upon a judgment obtained by Brandt against Edward Johnson.

On the trial of the cause in the court below, after a variety of testimony had been given by both parties, which will be found stated in the dissenting opinion delivered by Judge HUSTON George Gregor was produced and affirmed as a witness, for the plaintiffs in error. He testified as follows: " Edward Johnson bought the three quarter acre lot from Slingluff. David Johnson and Edward Johnson told me so." The counsel for the plaintiff below, then objected to his evidence, when the defendants counsel offered to give in evidence, " declarations made by David Johnson, after the purchase of the property in dispute from Slingluff and Ashmead, and while he held the legal title to it, and before it was afterwards sold to any one, that he had never paid any part of the purchase money, but that he held the title for the property as the trustee of Edward Johnson, and that Edward Johnson had paid the purchase money for it." To this evidence the counsel of the plaintiff below objected, upon which the court decided " that the witness could not give any evidence of any declarations made by David Johnson, unless such declarations were made at the time or immediately before, or immediately after, the execution of the deeds to him, or by him to the plaintiff Frederick Stong, or in the presence of the opposite party; the said David Johnson being a competent witness, and from any thing which appears to the contrary, in full life, and within the reach of the process of the court."

To this opinion the counsel of the defendant below excepted, and assigned it for error in this court.

The cause was argued by T. Sergeant for the plaintiff in error and by Kittera for the defendant in error; after which

OPINION

ROGERS J.

The declarations of a person, while in the possession of the premises, against his title, are always admissible, not only against him, but against those who claim under him. The general principle is conceded; but with this qualification that when the person whose acknowledgment is relied on is alive and a competent witness, that then he must be examined: that his declarations cannot be received. I have examined all the cases, and I cannot perceive a trace of any such exception. In most cases it is true the party was dead, and this is usually the case in fact, for it is the declarations of an ancestor that are most commonly offered in evidence. It has in no case however been made a subject of inquiry whether the person was dead or alive, a competent witness or otherwise, and this surely would have been the case had any such qualification of the general rule existed. The reason of the rule is at war with the exception. The point falls within the well established principle that although a man's declarations are not evidence for him, they are strong evidence against him. The principle is founded on a knowledge of human nature. Self interest induces men to be cautious in saying any thing against themselves, but free to speak in their own favour. We can safely trust a man when he speaks against his own interest. It it is not conclusive, but is unquestionable evidence, entitled to some weight against himself, and those who claim under him. Bassler v. Neisly et al. 2 Serg. & Rawle, 353. The defendant's counsel offered to prove declarations made by David Johnson, after the purchase from Slingluff and Ashmead, and before the sale of the property to any person, that he, David Johnson, never paid any part of the purchase money, but that he held the title as trustee for Edward Johnson, and that Edward Johnson had paid the purchase money for it. The court decided that the witness could not give any evidence of any declarations made by David Johnson, unless such declarations were made at the time, or immediately before, or immediately after the execution of the deeds to him, or by him to the plaintiff, or in the presence of the opposite party: David Johnson being a competent witness, and from any thing which appears to the contrary, in full life, and within reach of the process of the court. Suppose this declaration had been in writing, can David Johnson by a subsequent conveyance, prevent the party in whose favour the declaration was made, from giving it in evidence against the party who claims under him? And where is the difference between written and parol testimony, except in the certainty; and particularly in cases of personal property, which may pass by parol, and to which the principle also applies? Can it be that the party is forced to rely upon the testimony of Johnson, who it may be has assigned for the purpose of getting rid of his own admissions? If the defendant must examine Johnson they must hear their witness and cannot afterwards discredit him. They will in fact be utterly precluded from the testimony by the act of Johnson, and that this cannot be done is decided in Long v. Bailie Indorsee of Buchannan, 4 Serg & Rawle, 222. The defendant acquires an interest in testimony, of which he cannot be deprived by the act either of a witness or a party. The distinction is taken between an interest cast upon him by operation of law, and an interest acquired by the act of the witness himself.

Whether the admission of the testimony will vary the result is not now the question.

We think there was error in rejecting the testimony, and that the judgment should be reversed.

HUSTON J.

The only error assigned in this record is contained in a bill of exceptions to the opinion of the court in rejecting certain testimony. To understand the matter decided, it will be necessary to state what was the matter trying, and what had been proved.

Frederick Stong brought an ejectment to recover a house and three quarters of an acre of land (describing it), and also five acres used and occupied with the three quarters of an acre; and he deduced title to the house and lot on which it stood, by a deed, of 1st April, 1797, John Dutterer and wife, to S. Slingluff, and deed of 1st April, 1811, Samuel Slingluff and wife, to David Johnson, and deed of 1st April, 1813, David Johnson to Frederick Stong, the plaintiff, and he proved possession, first, in Dutterer, then in Slingluff, then in Edward Johnson, and proved and read a lease from Frederick Stong to Edward Johnson, dated shortly after Stong's purchase; he then proved the payment of money, which was contained in two bags; the amount witness could not state. He also traced title to the five acre lot; 1st April, 1795, deed John Doll and wife to John Wood. 4th of August, 1808, deed John Wood to William M'Dowell. 2nd of April, 1810, deed William M'Dowell to Samuel Ashmead. 13th of May, 1811, deed of Samuel Ashmead to David Johnson.

It was proved that Edward Johnson lived in the house and occupied both lots from 1811 till 1827. That in the neighbourhood many considered him the owner: That he built a weaver's shop, being a weaver, and a stable and a threshing floor at the end of it, and planted some fruit trees. Edward Johnson was the brother of David Johnson, and was married to a sister of Stong the plaintiff. The defendant then showed the record of a judgment, John Brandt v. Edward Johnson, in 1823, execution and proceedings ending in a sale of the premises to Brandt. Then an ejectment, John Brandt v. Edward Johnson, of August, 1826, and a judgment and hab fa. possessionem executed, on which Gibblehouse was put into possession as tenant of Brandt.

The defendants called S. Slingluff who had sold and conveyed the house and lot to David Johnson. He proved that the bargain was made between him, and Edward and David Johnson: That Edward was at the time his tenant in this house, but had been broken up by his creditors, and all he had sold by them: That he made the bargain with them both; part was to be paid at signing the articles, part at signing the deed, and to get judgment bonds, and mortgage for the residue: That when the articles came to be written, and the deed and mortgage and bonds, all were in the name of David Johnson alone: That David lived at some distance, and the witness seldom saw him: That the first and second...