Sower v. Weaver
| Decision Date | 17 May 1875 |
| Citation | 78 Pa. 443 |
| Court | Pennsylvania Supreme Court |
| Parties | Sower <I>versus</I> Weaver. |
Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.
ERROR to the Court of Common Pleas of York county: Of May Term 1875, No. 78.
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H. L. Fisher and W. C. Chapman, for plaintiff in error.—The defence being in the nature of a bill for specific performance of a parol contract against a legal title, there must be no doubt about the facts: Brawdy v. Brawdy, 7 Barr 157; Moore v. Small, 7 Harris 461; Rankin v. Simpson, Id. 471; Poorman v. Kilgore, 2 Casey 365; Collins v. Collins, 2 Grant 117. Declarations and admissions of an alleged donor are the weakest kind of evidence: Robertson v. Robertson, 9 Watts 32. The evidence must be direct, positive and unambiguous: Ackerman v. Fisher, 7 P. F. Smith 457; Harris v. Richey, 6 Id. 395; Eckert v. Eckert, 3 Penna. R. 332.
J. Gibson and V. K. Keesey (with whom was G. W. McElroy), for defendant in error.—Where a donee has had a long and continued possession which is not satisfactorily accounted for, the proof required is not so strict as when the gift has been recently made: Willey v. Day, 1 P. F. Smith 57; Richards v. Elwell, 12 Wright 361; Mahon v. Baker, 2 Casey 519.
Had this case been tried below before the Act of 1869, and without the testimony of the defendant and his wife, there would have been literally no evidence to sustain the defence. There would have been nothing but a few vague declarations by the plaintiff, entirely consistent with a temporary family arrangement, by which the father built a house on his land and put his daughter and son-in-law in possession, to hold during his pleasure, and utterly insufficient to establish a parol gift.
Even the testimony of Weaver and his wife did not come up to the requirement of the rule that the evidence of the contract must be direct, positive, express and unambiguous: Ackerman v. Fisher, 7 P. F. Smith 457. A chancellor must look at the whole evidence, and in this case the uncontradicted fact that during Weaver's possession Sower sold and conveyed a part of the land with Weaver's knowledge and assent, for a school-house, would, of itself, contradict the inference of a parol gift. But how stands the case since the Act of 1869, and supposing that the testimony of Weaver and his wife made out the gift? The defence was a purely equitable one. Had the defendant gone into a court of equity for a specific performance, or for an injunction to restrain the plaintiff from pursuing his legal title to turn him out of possession,...
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Estate of Grossman
...in controversies affecting the interests of either, the testimony of both is considered as the testimony of one person only: Sower v. Weaver, 78 Pa. 443 ((1875)). If the legislature had intended to change the law in this respect, against the theory of both the common and the statute law and......
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... ... 85; Robertson ... v. Robertson, 9 W. 42; Moore v. Small, 19 Pa ... 461; Frye v. Shepler, 7 Pa. 91; Poorman v ... Kilgore, 26 Pa. 365; Sower v. Weaver, 78 Pa ... 443; Allison v. Burns, 107 Pa. 50; Erie etc. R ... Co. v. Knowles, 117 Pa. 77; Soles v. Hickman, 20 Pa ... Mr ... ...
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...transaction between such plaintiff and the defendant cannot be used each as a corroboration of the other and a case thus made out: Sower v. Weaver, 78 Pa. 443; Pioso Bitzer, 209 Pa. 503. As a general rule, extrinsic evidence is not admissible to destroy the effect of an answer by impeaching......