Parry v. Parry , 130 Pa. 94 ( 1889 )

Opinion,

Mb. Justice Mitchell :

Roger L. Parry, about 1856, entered upon the land in suit under articles of ag’reement for its purchase. He made payments on account from time to time, until 1866, when he left the state, and, with the exception of two or three visits, never returned, or resumed his occupation of the land. His family continued to reside on the land, and his wife, with the assistance of one or two of the sons, made payments on account of the purchase money. In 1867 a deed was made to her, under the articles of purchase, though it was not delivered to her by the vendor until several years later, when she completed or finally secured the payment of the purchase money. Roger L. Parry having died in 1882, this ejectment was brought in 1884 by the plaintiff, as one of his heirs. The facts as thus far stated being undisputed, plaintiff might have rested, and would then have been clearly entitled to a verdict, subject to the payment of his share of the disbursements made by his mother in completing the title. But he put his case upon the claim that the title, having been obtained by his mother by fraud, was void as against Roger L. Parry and his heirs, and he therefore brought suit, without tender or offer to reimburse any part of the mother’s payments. This, of course, he wa6 entitled to do, under the authority of Hall v. Yanness, 49 Pa. 457, and kindred cases. Such being the plaintiff’s case, the defence was that the deed to his wife was made with the consent, if not by the direction, of Roger L. Parry. This was the only substantial issue at the trial, and was submitted to the jury in a careful charge, to which only one exception was taken by the plaintiff, and the principal grounds of error alleged are the rulings of the learned judge on the evidence.

Several of the assignments raise substantially the same question, — the admissibility of the declarations of Roger L. Parry as to his title to the premises in dispute. As the issue was whether the title was in him or in his wife, it is clear that his declarations, in his own interest, not made in his wife’s presence, are not admissible against the title of her devisee. The fact that the offers contained some other matters which were admissible does not help the appellant. The offers were made as a whole, and if any part was bad the whole was inadmissible. The learned judge indicated, clearly and correctly, the distinction between the good and the bad parts of the offers, but no separate offer of the former was made. The first three, and the eighth, ninth, and twelfth assignments, therefore, cannot be sustained.

The fourth, fifth, sixth, and seventh assignments relate to the mental condition of Ploover, the grantor, at the time he made the disputed deed to Elizabeth Parry. The objection that plaintiff had himself given the deed in evidence, and was therefore estopped from denying its validity, is not tenable. Plaintiff had given the deed in evidence as part of a fraudulent scheme to get the title away from Roger L. Parry, and Iris offers to show that the scheme had been assisted by the weak mental condition of the grantor were in the direct line of the same effort. Plaving given the deed in evidence in this connection, he was not estopped from attacking its validity. But the objection to the relevancy of the offers was properly sustained in the condition of the evidence. Weakness of mind of the grantor might be provable as cumulative or corroborative evidence of how and why the fraudulent scheme succeeded, but it is certainly no evidence in itself of the existence of the alleged fraud. For the purpose, and at the time it was offered, it was therefore properly excluded.

The .offers in the tenth, eleventh, nineteenth, and twentieth assignments would have been clearly admissible had the conversations referred to been upon the subject of the deed in question, or upon any matters so closely related to it that the failure to mention the presence of Roger L. Parry would afford the jury some ground to infer a discrepancy, intentional or otherwise, between the conversations and the present contention of the parties ; but, lacking tins necessary connection of subject, the conversations were clearly irrelevant, and that this failure in the connection of subjects was not a mere oversight is made apparent by the examination of the two witnesses immediately preceding, McVay and Moore, both of whom were asked the same question, although they both stated they had had no conversations with Dr. Parry on the subject.

There was no error in excluding the plaintiff as a witness. The thing in controversy was the validity of the deed to Elizabeth Parry, which was claimed to have been a fraud on Roger L. Parry. Both were dead. The plaintiff claimed under one, while the defendant claimed under the other ; and, being thus interested, neither was a competent witness. By the express language of the act of May 23, 1887, P. L. 158, § 5, cl. ('e), “ Nor where any party to a thing or contract in action is dead, .....and his right thereto or therein has passed.....to a party on the record, who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased.....party, be a competent witness to any matter occurring before the death of said party.” The plaintiff’s interest against his mother’s title thus excluded him, while the absence of interest of Dr. Wm. Parry made him competent. The thirteenth and fourteenth assignments are therefore not sustained.

The admissibility of the offers in the fifteenth, seventeenth, and eighteenth assignments depends on the evidence as to the presence of Roger L. Parry at the delivery of the deed to his wife, or his authorization in any way of the conveyance to her. If, without his knowledge or consent, she took the title which, under the articles of purchase, should have been made to him,, she was a mere volunteer, and her payment of a part of the purchase money could not help her title. But if, on the other hand, she took up the agreement with his consent, and completed the payments that he had bound himself for, it was strongly persuasive evidence that the title, was rightfully made to her. The evidence, therefore, was properly received.

The offer in the sixteenth assignment was little more than hearsay, and the connection between it and what it was offered to prove — to wit, why Roger L. Parry refused to see his wife on her visit to him shortly before his death — is difficult to see. If, therefore, the case had to go back for retrial, we should be obliged to sustain tins assignment; but the plaintiff’s case resting upon the ground of fraud, there is an entire absence of such evidence as would justify a recovery, and he might properly have been nonsuited at the close of his testimony. The case was, however, left to the jury upon the single issue whether or not Roger L. Parry was present and consented to the delivery of the deed conveying the title to the wife, and upon this question the evidence complained of in this assignment could have had no appreciable bearing. Under these circumstances the error in its admission was too trivial to justify a reversal of the judgment.

The twenty-first assignment cannot be sustained. There is some apparent contradiction in the part of the charge referring to the testimony of Dr. Parry as the only evidence in the case as to the delivery of the deed in the presence of Roger L. Parry, and then telling the jury that they might, nevertheless, believe him if there was other evidence on which they did rely that corroborated him. But the contradiction is only in the phraseology, and what the learned judge meant, no doubt, was that there might be such corroboration as to other matters as to induce the jury to believe the witness even on the point on which his testimony had been shaken by opposing evidence. But the point which was affirmed was more favorable to the plaintiff than he was entitled to. His case rested on a charge of fraud, and the burden of proof was upon him throughout. The consent of Roger L. Parry to the making or delivery of the deed to his wife would be a conclusive answer to the fraud charged, and there was no legal requirement that such consent should be proved by “ clear, convincing, and satisfactory evidence.” Sufficient evidence to make an even balance, and prevent the jury from believing the charge of fraud on which the plaintiff based his case, was all that the situation required of the defendant.

On the whole case we find no substantial error. The case was presented by the parties on a single issue of fact, and the jury have determined that in defendant’s favor. If the testimony of Dr. Parry was to be believed, the jury were clearly right; and whether he was to be believed or not was their province to determine.

The judgment is affirmed.