Robinson v. Myers.

• Decision Date: 09 October 1871
• Citation: 67 Pa. 9
• Court: Pennsylvania Supreme Court
• Parties: Robinson <I>et al. versus</I> Myers.

Page 9

67 Pa. 9

Robinson et al. versus Myers.

Supreme Court of Pennsylvania.

November 4 and 5, 1870.

October 9, 1871.

November 4th and 5th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1869.

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M. A. Woodward and M. W. Acheson, for plaintiffs in error.— The plan of "Buena Vista" was part of the defendant's title: Birmingham v. Anderson, 4 Wright 513, S. C. 12 Id. 253; it showed that 270 was a lot not an alley. The proof was that the alterations had not been made when the deed was executed, but had been afterwards made without the grantor's consent. The questions of whether the alterations were made before the execution of the deed or if afterwards with the grantor's consent were submitted without evidence. But the utmost effect of the calls for an alley would be to give to the grantees a right of way over 270, by implication or on the principle of estoppel: O'Linda v. Lothrop, 21 Pick. 232; Washburn on Easements 169; Bellinger v. Burial Ground Society, 10 Barr 137.

The soil under a highway passes, if at all, as parcel of the land; this is a question of intention to be ascertained from desciptions, &c., in the deed: Angell on Highways, sec. 314. Land will not pass as appertenant to land. Nothing could pass with lots but a perpetual easement over 270: Washburn on Easements 129. The soil notwithstanding may be recovered in ejectment: Cooper v. Smith, 9 S. & R. 26; the way being discontinued the lot was free from the encumbrance: Washburn on Easements 196; 3 Kent's Com. 448, 450; Taylor v. Hampton, 4 McCord 96; Crain v. Toy, 16 Barb. R. 184; Coming v. Gould, 16 Wend. 540; Arnold v. Cornman, 14 Wright 361. The defendant's title, if any, was extinguished by the proceedings in the Quarter Sessions.

S. Schoyer, for defendant in error.—Ramsay being a witness to the deed, might be contradicted by the party calling him: 1 Greenlf. Ev., § 443. The jury might infer from the other evidence that he falsified when he said he did not know whether the alterations were in his writing, "when every one in the court-room could have sworn by comparison" that it was his. An alteration in a deed is presumed to be legitimate: Simpson v. Stackhouse, 9 Barr 187; Jordan v. Stewart, 11 Harris 244; 1 Greenlf. Ev., § 564. The question of easement does not arise. When the lots adjoining the alley were conveyed in fee the purchasers took the soil to the middle of the alley: Paul v. Carver, 2 Casey 225; Ball v. Ball, 1 Philada. R. 87; Cox v. Freedly, 9 Casey 130. Streets laid out on a plot are not public until adopted by the public: McCall v. Davis, 6 P. F. Smith 431.

The opinion of the court was delivered, October 9th 1871, by WILLIAMS, J.

The first question presented by this record arises on the admission in evidence of the deeds to Morgan and Maholm, under which the defendant claims title to the lot in controversy.

When first offered, they were rejected on account of material alterations not noted in the attestation clause, which were apparent on their face. The subscribing witness was then called to account for the alterations, and instead of showing that the interlineation in the deed to Morgan was made before its execution and delivery, his testimony tended to prove that it was made afterwards, without the knowledge and consent of the grantor. He said: "I am a witness to this deed. It is written by me. I made the interlineation of the words `along an alley.' I made the interlineation at the request of James Morgan after General Robinson had told me to leave alleys opposite the alleys in his plot. It was done after the deed was executed and delivered to Morgan. I had no authority to make the interlineation except by his directing me to leave alleys opposite the alleys in his plan. I was acting as agent for General Robinson in selling lots. The alteration was made very shortly after the deed was delivered to Morgan. I know that Morgan brought the deed back to me after he got it, and wanted me to make the interlineation; I told him it was no use. He insisted on it being done, and I made it." If the interlineation apparent on the face of the deed rendered its appearance suspicious, the testimony of the scrivener and subscribing witness entirely destroyed its character as an instrument of evidence, and it ought to have been rejected. But having been admitted, the jury should have been instructed in accordance with the plaintiff's second point, that the evidence in respect to the interlineations was not sufficient to show that it was made with the assent or authority of the grantor, and the jury must reject it as an unauthorized interpolation. With respect to the interlineation in the deed to Maholm, the witness said: "I wrote this deed also; I cannot say whether the words `a twenty-feet,' interlined are in my handwriting or not. The word `alley' is in my handwriting." The defendant then showed by the testimony of Arthur Hobson and Robert Ray, that they were acquainted with the handwriting of the witness, and that the words "a twenty feet," interlined in the deed, are in his handwriting, and he also showed by the testimony of Hobson, that in 1858 or 1859, he called on General Robinson "to know if the lot in dispute was an alley or private property, and that he stated that he had no property there; that it was laid out for the purpose of these lots, the Morgan lots." It is not easy to see how this testimony relieved the deed from the suspicion that led to its rejection when first offered. It is true, that it tends to show that the interlineation is in the handwriting of the scrivener, but this must have been apparent on inspection of the deed, if, as stated in defendant's paper-book. "Everybody in the court-room would have sworn to it by comparison with the context."

The declaration of Robinson that the alley was laid out for the purpose of the Morgan lots has little or no bearing on the question, whether the interlineation in the deed to Maholm was made before its execution and delivery or afterwards with his knowledge and consent. As it was beneficial to the defendant, the burthen was on him of showing that it was properly made. If it appeared to be written with the same pen and ink as the body of the instrument, the natural inference would be that it was made before the sealing and delivery of the deed. But if it...