Velott v. Lewis
| Decision Date | 05 March 1883 |
| Citation | 102 Pa. 326 |
| Parties | Velott et al. <I>versus</I> Lewis. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, TRUNKEY, STERRETT, GREEN and CLARK, JJ. PAXSON, J., absent
ERROR to the Court of Common Pleas of Delaware county: Of January Term 1883, No. 164.
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
William B. Broomall (Edmund Jones with him), for the plaintiffs in error.
George E. Darlington (with him A. Lewis Smith and James S. Cummins), for the defendant in error.
The first, second, fourth, tenth, eleventh and twelfth assignments of error cannot be sustained, as the rulings therein complained of are, in our opinion, faultless. The deed of Randle Croxton and wife to Peter Trego, dated October 10th 1734, ought to have been acknowledged or proved, according to the provisions of the Act of May 28th 1715, in order to admit it of record. Under that Act, an effective probate could only be made by two or more witnesses, and it was therefore held, in the case of Vickroy v. McKnight, 4 Bin. 204, that an office copy of a deed, executed prior to the Act of 1775, and proved by but one subscribing witness, could not be admitted in evidence. Admitting, however, that as this deed of Croxton to Trego was not proved until after the Act of 1775, probate by one witness was all that was required, nevertheless, even such probate has not been produced. This deed purports to have been executed in the presence of three witnesses, whose names are subscribed, but all we have in the way of proof is the probate of Nathan Taylor, made on the 12th of October 1790, to the signature of his father, one of the three witnesses, who, we may infer from the use of the words "his said late father," was at that time dead, but there is no proof that the others were not then in full life, nor does it appear that they could not have been produced. Under such circumstances the secondary proof of handwriting was not admissible. As was said in Peters v. Condron, 2 S. & R. 80. "no person can be permitted to prove a deed, until it appears that the subscribing witnesses are dead, or cannot be had." It follows, that the probate to the deed in controversy was not sufficient to admit it to record under the Act of 1775, hence, the alleged record was properly refused as evidence of title, and ought, in fact, to have been admitted for no purpose whatever.
Under the second assignment we are asked to reverse the court below for its refusal to extend the doctrine of Rothrock v. Gallaher, 10 Nor. 108, to the case of a witness of ordinary health and memory. This we cannot do. There was no evidence tending to show that the witness, Clayton Smith, had, in the interval between the time of the arbitration and trial in court, by old age or otherwise, lost his memory. He but failed to recollect what he had previously sworn to, but if this were enough to admit the notes of a former trial, we might as well abandon original testimony altogether, and supply it with previous notes and depositions. It would certainly be an excellent way to avoid the contradiction of a doubtful witness, for he could always be thus led to the exact words of his former evidence. As we are not yet prepared for an advance of this kind, we must accept the ruling of the court below as correct.
The fourth specification is hardly worth notice. We cannot see how it became necessary to show that Mordecai Lewis paid full value for the land when held by him, since no one called that fact in question, nevertheless, the defendant's right so to do, if he thought it proper, cannot be questioned.
The points covered by the tenth, eleventh and twelfth assignments, were well answered, since they are in accordance with the opinion of this court as found in the case of Tullock v. Worrall, 13 Wr. 133.
Thus far we find no fault with the manner in which this case was tried in the lower court; there are, however, some things which occur in its rulings of which we cannot...
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