Sutherland v. Ross
| Citation | 140 Pa. 379 |
| Parties | JAMES SUTHERLAND v. WILLIAM ROSS. |
| Decision Date | 02 March 1891 |
| Court | United States State Supreme Court of Pennsylvania |
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Before PAXSON, C. J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.
No. 146 January Term 1891, Sup. Ct.; court below, No. 97 June Term 1889, C. P.
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Mr. John M. Arundel, for the appellant:
1. Although afterwards enjoying the fruits of the forged deed, Dager personally was not a party to the forgery; and indeed, there is no evidence that he knew, at the time he received the deed, of the fraud practiced by his agent. It is but fair to assume that he placed the $1,000 consideration money in the keeping of his agent, expecting that the latter would by proper deed obtain the title for him. It is clear that he was not physically a party to the transaction. It was wholly consummated in his absence. If living, he could not give a particle of testimony respecting it, other than hearsay. Does his death exclude the plaintiff from testifying to a transaction with his agent, in his absence? It is submitted that neither the act of April 15, 1869, P. L. 30, nor the act of May 23, 1887, P. L. 158, contemplates such exclusion. In excluding the surviving party when the other is dead, they obviously refer to the death of a person who actually took part in the transaction, as one of the contracting parties. The death of Dager produced no inequality, as, if living, he could not have uttered a syllable to contradict the plaintiff. The case is therefore not within
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the reason of the excluding proviso of the statute, which does not apply: Van Horne v. Clark, 126 Pa. 411; Karns v. Tanner, 66 Pa. 297; McClelland v. West, 70 Pa. 183; Hess v. Gourley, 89 Pa. 195; Hostetter v. Schalk, 85 Pa. 220; Gamble v. Hepburn, 90 Pa. 439; 1 Whart. Ev., §§ 467, 470, 476; Brown v. Brightman, 93 Mass. 226; Hildebrandt v. Crawford, 65 N. Y. 107; Wheeler v. Arnold, 30 Mich. 307; Ward v. Ward, 37 Mich. 253.
2. The proposed testimony of Mrs. Sutherland was only corroborative of that already given by Mrs. Powell. Why then was it rejected? None of the objections urged against the competency of the plaintiff apply in the remotest degree to the offers made when his wife was upon the stand. She was not asked whether her signature was a forgery. The questions addressed to her were confined solely to the acts of the magistrate. Surely, it is competent for the wife of a grantor, whether the grantee be living or dead, to testify as to the fraudulent act of the magistrate in falsely...
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