Murray v. New York, &C. R. R. Co.

• Decision Date: 23 April 1883
• Citation: 103 Pa. 37
• Parties: Murray et al. <I>versus</I> The New York, Lackawanna & Western Railroad Company
• Court: Pennsylvania Supreme Court

Page 37

103 Pa. 37

Murray et al. versus The New York, Lackawanna & Western Railroad Company

Supreme Court of Pennsylvania.

March 15, 1883.

April 23, 1883.

March 15th 1883.

Before GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. MERCUR, C. J., did not sit; CLARK, J., absent

ERROR to the Court of Common Pleas of Bradford county: Of January Term 1883, No. 120.

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Edward Overton, Jr. (with whom was John F. Sanderson), for plaintiffs in error.—The fact that Harris Murray was dead was not a sufficient reason for excluding the testimony of Sophia R. Murray, to impeach the deed of June 5th 1861. Harris Murray owned this land. He conveyed it to his daughter Ellen. He was a competent witness, prior to the Act of 1869, to show that Ellen took in trust for herself and her brothers and sisters. A grantor in a deed is a good witness to invalidate it. The rule that no man shall be permitted to impeach his own deed was introduced through policy, and is confined to negotiable instruments: McFerran v. Powers, 1 S. & R. 102; Brown v. Downing, 4 S. & R. 494; Barring v. Shippen, 2 Binney 165; Mulford v. Downer, 10 W. N. C. 446; Kronk v. Kronk, 4 W. & S. 127; Dayton v. Newman, 7 Harris 194; Miller v. Pearce, 6 W. & S. 97. The test of a witness's competency is, that he is in no way involved in the final result of the verdict: Ferree v. Thompson, 2 Smith 353; Wright v. Funck, 13 Norris 26; Sheetz v. Norris, 2 W. N. C. 637.

In all these cases the witness was allowed to invalidate his own deed, though one of the parties to the transaction was dead. So we say that Harris Murray, if living, would be a competent witness to show that the deed to Ellen M. Howard was obtained from him upon the promise and assurance that the title should be held for the benefit of all his children.

But it does not follow, if it were otherwise, that his widow would be excluded from testifying after his death. Where the relationship has ceased by death or divorce the wife may be admitted for or against the former husband or his representatives, or the converse: Wharton's Evidence, sec. 429; Robb's Appeal, 2 Out. 501.

The paper offered in evidence and rejected (sixth assignment of error), was a material part of the plaintiffs' case. The whole evidence went to show that Harris Murray reserved the right to say how, after the termination of the life estate, and the payment of the specific legacies to his children, the remainder of the property should be disposed of. It was to be by him alone or by him and his wife. The execution and delivering of the paper in question settled this and was material to establish the plaintiff's title. It was also a formal transfer of the trust and a final exercise of all the powers reserved by the grantors.

As to the other assignments. The evidence established that Harris Murray, in 1861, was feeble and intemperate; that Howard was his confidential adviser; that a deed of property was obtained from him for a totally inadequate consideration. These facts are sufficient to sustain the plaintiffs' claim: Jones's Appeal, 11 W. N. C. 258; Darlington's Appeal, 5 Norris 518; Perry on Trusts § 201.

There was no evidence in the case to warrant the affirming of the defendants' first point.

D. A. Overton (with whom was B. M. Peck), for defendant in error.—Sophia R. Murray was clearly an incompetent witness under the Act of 1869; she was a party to the record. The defendants were compelled to set up the title of A. C. Howard or otherwise pay damages twice. Ellen M. Howard, the "assignor of the contract in action" (in the meaning of the statute) was dead. There was no reason why the other parties should have a point strained in their favor in order to make Sophia R. Murray a witness; and not only was Ellen M. Howard dead, but Harris Murray also, and when A. C. Howard was offered by defendants as a witness, the plaintiffs objected, "that the witness being interested is not competent to testify to anything that occurred prior to the death of Harris Murray." This objection was properly sustained by the court, and is equally applicable to Sophia R. Murray's testimony: Karns v. Tanner, 16 P. F. S. 305; Graves v. Griffin, 7 Harris 176. The paper referred to in the sixth assignment of error was merely a written declaration of a person who could not be a witness, and certainly was not evidence. The court committed no error in its statement of the law in regard to the character of proof necessary to impeach a deed: Spencer v. Colt, 8 Norris 314; Rowand v. Finney, 15 Norris 192.

Mr. Justice PAXSON delivered the opinion of the court, April 23d 1883.

The first three assignments raise substantially the same question, and may be considered together. The court below rejected the testimony of Sophia R. Murray, and the deposition of Harris Murray. The deposition was taken under a bill to perpetuate testimony. The witnesses were the grantors in the deed of June 5th 1861, to Ellen M. Howard. The latter was deceased at the time of the trial below, and the evidence was offered for the purpose of impeaching her deed by showing that it was obtained by the exercise...