Hays v. Hays

• Decision Date: 16 September 1847
• Citation: 6 Pa. 368
• Parties: HAYS <I>v.</I> HAYS.
• Court: Pennsylvania Supreme Court

6 Pa. 368

HAYS v. HAYS.

Supreme Court of Pennsylvania.

September 9, 1847.

September 16, 1847.

Sept. 9.

IN error from the District Court of Allegheny county.

Seldon, for plaintiffs in error, cited Faulder v. Silk et al., 3 Campb. Rep. 126. This was sufficiently proved to be the deed of John Hays to Jacob Hays, to be put on record, and be given in evidence; Pigott v. Holloway, 1 Binn. 442; Miller's Appeal, 3 Rawle, 318; Seigfried v. Levan, 6 Serg. & Rawle, 308; Watson v. Brewster, 1 Barr, 384; 2 Greenleaf's Evidence, sect. 295.

Woods, contrà—as to the power of the court to decide as to the execution of a paper — cited Commissioners of Berks County v. Ross, 3 Binn. 542; McCorkle v. Binns, 5 Binn. 348.

Sept. 16. BURNSIDE, J.

The plaintiffs below, and defendants in error, claimed the undivided third part of the lands in question as heirs of John Hays deceased, who had, in 1845, been duly declared a lunatic, with a retrospect of forty years, with lucid intervals.

These facts having been given in evidence by the plaintiff, the defendant, Jacob Hays, offered in evidence a paper, purporting to be a deed of the 19th of September, 1832, from John Hays to his brother, Jacob Hays, for the land in dispute, and called the subscribing witnesses, who were sworn, and gave evidence as follows: —

Jesse Gibbs. — "This is my handwriting, as a witness to this deed. The paper I put my name to was folded up; I did not take notice to any writing on it, and did not look at its date. I put my name on it. I did not see that paper executed. I did not see any name on it at all, to the best of my recollection, when I put my name to it. I was called in by Jacob Hays to sign that paper; they gave me no intimation at all of what the paper was, nothing that I can recollect; I don't recollect seeing any name on it, but my brother's and mine, who signed it when I did. I do not think there was any name on it. I did not hear what the contents of the paper were. I signed at the request of Jacob. I don't remember what John said, further than that Jacob asked John if he wished it should be so, as in that paper, or something like it, and John said he did. I saw no writing at all on the paper; it was folded up, and I signed because Jacob Hays requested it.

Charles Gibbs. — "The signature, Charles Gibbs, was written by me. I am a son-in-law of Jacob Hays. I think I wrote the name `John Hays,' from the look of it. I think there was something said about a mark, and probably John put it there at the time, but I don't recollect. The first time I ever knew he could not write, was when they talked about the mark to be put to this piece of paper. I think the paper was handed me by Jacob Hays. I think they were both in the room. I think Jacob Hays sent for me, and handed me the paper; can't say positively which, Jacob or John, requested me to write John's name. I think John made his mark at the time to the paper, but I am not certain. I am not certain that it was put there at the time, but I think so. I first signed my name, then his, and then he put his mark to it, I think. It was talked of, and I think he did it. When the deed was handed to me, I asked what it was. Jacob Hays said it was an arrangement of some of their business, and did not tell me what. I objected to sign it, and it was said by one or both that it was an arrangement amongst themselves, and wished it kept secret. I then signed it. I think John talked, but I...