Grant v. Levan

• Decision Date: 25 January 1846
• Parties: GRANT <I>v.</I> LEVAN.
• Court: Pennsylvania Supreme Court

4 Pa. 393

GRANT v. LEVAN.

Supreme Court of Pennsylvania.

January 5, 6, 7, and 8, 1846.

January 25, 1846.

Jan. 5, 6, 7, and 8.

IN error from the Common Pleas of Schuylkill county.

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W. A. Porter, for plaintiff in error.—1. The deed from George Grant to Lewis Dewart should have been received. Was Dewart the party next in interest, in the sense of the act of 1807? Purdon, 334. Certainly George Grant was not; he had no interest. If Dewart were the devisee of Grant, the point would be clear. 3 Penna. Rep. 426. But the words are broad enough to embrace alienation by deed; why limit them? If properly there, it was necessary Dewart should show his right to the place, and this could be shown only by the admission of the deed. 5. Were the notes from Martin to Morris evidence? The agreement had been offered by the plaintiffs, to explain the delivery of the twenty-five unsatisfied warrants to Martin. It contains internal evidence of a consummation of all previous arrangements. No allegation is made of fraud in its execution, ambiguity in its terms, or mistake in its meaning. It creates no trust. Is there another instance in which the admission of extrinsic evidence, to explain written instruments, is warranted? 1 Dall. 427; 7 Serg. & Rawle, 115; 3 Watts, 243; 16 Serg. & Rawle, 424; 1 Peters' U. S. Rep. 591, (598;) 1 Serg. & Rawle, 464; 10 Serg. & Rawle, 292; 1 Penna. Rep. 417; 6 Serg. & Rawle, 401; 4 Rawle, 130. If the notes accorded with the agreement, they were irrelevant; if they differed from it, may the intentions of the parties not have changed before the execution of the principal paper? For what purpose make the agreement, if their previous acts were to be equally open for construction? 6. The endorsement on the draft is the main point. It was probably made in 1793; was retained by Martin until his death; by his executor for twenty-eight years, and upon the death of the latter was fraudulently removed by one whose interests had then become adverse to the plaintiffs. If possessed of all the attributes of a deed, it was not delivered and can in no way affect the title to land. Co. Litt. 35 b, 49 b; 12 Johns. Rep. 418; 1 Johns. Ca. 114; 3 Hill, 513; 2 Watts, 362; 1 Penna. Rep. 32; 2 Penna. Rep. 310; 5 Watts, 343; 8 Watts, 9. But it is not a conveyance of any thing, nor a covenant to stand seised to uses. 12 Johns. 73; Ib. 355; 1 Preston on Abs. 72, 312; 3 Prest. 21; 1 Dall. 137. Was it such evidence of a sale to Morris as created an equity in the defendants? Upon what terms was the sale made? At best, the contract was executory; "the over measure to be cast up," &c. There was no agreement to satisfy the statute of frauds, and no possession taken. Payment of the money would have been insufficient. 6 Whart. 153; 9 Watts, 85; Ib. 109; 4 Watts & Serg. 228. Could a chancellor enforce the performance of such an agreement? (1.) There is no mutuality. 1 Watts & Serg. 554. If any, Martin alone was bound, and could have had no remedy. (2.) The terms are absent. How draw a bill in equity from such a paper? 2 Ball & Beaty, 58; Ib. 451; Ib. 369; 2 Sch. & Lef. 549; 9 Watts, 108; Ib. 16. (3.) Chancery will not enjoin in favour of a delinquent equitable owner against the legal holder. 9 Watts, 319; 2 Watts, 151. It was not a declaration of trust, nor evidence of a trust, resulting from the alleged payment of the purchase money. But two cases of such a trust can arise, and in these this is not embraced. 2 Watts, 323; 9 Watts, 32; 5 Watts, 389; 1 Pet. C. C. Rep. 366; 2 Wash. C. C. Rep. 397. Was it a declaration made by Martin in opposition to his own interest, and thus evidence against those claiming under him? (1.) The position assumes what is to be established. The declaration never was made. Martin and his executor refrained during their lives from making it; and George Grant pretended to no authority to do what they had left undone. All the cases are of words actually spoken, or letters sent. (2.) No proof was given of the loss of the deeds-poll, to warrant its introduction as secondary evidence. Mr. Rawle's search was insufficient. The trunk in Wayne county might have contained them, if in existence. (3.) George Grant's fraud destroyed the paper. After this, sound policy and morality forbade its use in a court. But the effect was lost by lapse of time. 3 Ves. jun. 696, n.; 4 Ves. 686; 5 Ves. 719; 13 Ves. 225; 1 Johns. Ch. 370; 3 Johns. Ca. 60; 4 Johns. Ch. 559; 2 Watts, 214; 5 Whart. 584; 6 Watts, 396; 8 Watts, 374; 5 Serg. & Rawle, 427; 4 Rawle, 38. After a change in the value of the land, a contract to convey will not be enforced. 6 Wheaton, 528; 8 Johns. Rep. 257; 13 Johns. Rep. 359; 5 Johns. Ch. Rep. 194; 8 Cranch, 471; 9 Cranch, 456. Morris's failure to return the lands in bankruptcy proved it not to have been an existing agreement then. — The court erred in their charge. The construction of the endorsement should not have been left to the jury: the theory of their office supposes them incompetent to that. From such a source great uncertainty must flow. The direction should have been that the plaintiffs had the legal title, and at most the defendants an equity incapable of enforcement, after the lapse of time, and in the absence of the terms of the contract. 9. Mr. Rawle had conveyed the lands to the Jordans and Levan, and had a lien for a part of the purchase money. His testimony was offered, not to the court to form a basis for secondary evidence, but to the jury; and the court commented on it in their charge. In this instance, that necessity, which is the test of an interested witness's admissibility, did not exist. Mrs. Nixon, or the representatives of Mr. Davis, could better have testified to the same facts. It was not alleged the papers were lost while in his custody, and the rule admits of no exception that he only, in whose hands a document has been lost, shall be permitted to prove the loss. 1 Greenl. Ev. 396. The reason is plain; he may thus relieve himself from the effects consequent upon wilful suppression. Where the reasons stop, the rule should stop. 10. In receiving the assessments of taxes there was error. Such assessments have been admitted as the foundation of a tax title; for the same reason that a sheriff's deed requires the production of the judgment. From the payment of taxes on unseated lands for twenty-one years, a presumption of ouster has been drawn. 3 Watts, 70; 17 Serg. & Rawle, 350. Assessments have been admitted to show the extent of a claim under the statute of limitations. 10 Watts, 142; 2 Watts & Serg. 240. Here they were offered, not for these purposes, but to prove title. Every reason in the decision that a constable's return of the retailers of foreign merchandise is inadmissible, applies to this point with equal force. 7 Watts, 486; 4 Whart. 365. 15. Should the clerk have certified this record or the judge? If the act of 1790 (1 Story's Laws, 93) be held to apply to state courts, that of 1789, constituting the District Court, must govern. Ib. 54. How can he receive fees for copying, and take the oath, and give bond for preserving the records, if not committed to his custody? Shall the judge certify that of which, from the absence of the records, he must be ignorant? If we are thrown back on the common law, then it was the clerk's duty to keep and to certify the records. 1 Stark. Ev. 189; Jacob's Law Dic., tit. Prothonotary, tit. Clerk of the Assize; 2 Har. & Johns. 132; 1 Dana, 12; 3 Wash. C. C. Rep. 126; 2 Johns. Ca. 119; 9 Watts, 311. If the proceedings in bankruptcy were not records, a sworn copy was requisite.

Bannan, contrà.—1. The suit was more than six years before the conveyance was made, and the act has never been extended to grantees of plaintiffs. McCulloch v. Cowher, 5 Watts & Serg. 427. [ROGERS, J. — You did not move to strike off, and being on the record, they had a right to show their title.] 5. These papers showed that Martin was unable to purchase lands; had been employed by Morris to discover them; that Morris had advanced the money which Martin had never accounted for, and the evidence was to establish a trust, or rebut an equity. [ROGERS, J. — That is immaterial, having been ruled in plaintiffs' favour.] 6. We never pretended the endorsement was a deed, or conveyance of any description whatever; but it was evidence of the fact of a past sale and receipt of purchase money, creating an equity. There was no evidence of a legal title in Martin; he had at most but the right resulting from the payment of the purchase money to the Commonwealth, and we used this merely as his written admission, that he had parted with that right to us for a valuable consideration. The statute of frauds does not interfere, for the evidence is in writing, and signed by the party whose heirs are charged. The only fraud was on the heirs of Morris, in requiring a price for the disclosure of this evidence. On the strength of this, $30,000 has been paid, and expensive improvements made. The meaning of the paper is, that the deeds-poll from the warrantees were to be made to Morris directly. McDonald v. Campbell, 2 Serg. & Rawle, 473. If there be a doubt as to his meaning, that was for the jury. Here was, at all events, a written acknowledgment of a past sale of specific lands, and a receipt of the purchase money, which is certainly sufficient to extinguish or pass such a right as Martin had. Bassler v. Niesly, 2 Serg. & Rawle, 352-4; Reed v. Dickey, 1 Watts, 152; Hiester v. Laird, 1 Watts & Serg. 245-8; Packer v. Gonsales, 1 Serg. & Rawle, 526; Gibblehouse v. Stong, 3 Rawle, 437; McDonald v. Adams, 7 Watts & Serg. 371; 3 Wash. C. C. Rep. 369. But it is said the declaration of Morris is, that he...