Strawbridge v. Cartledge , 7 Watts & Serg. 394 ( 1844 )

The opinion of the Court was delivered by

Kennedy, J.

The first error is a bill of exception to the opinion of the court admitting in evidence a deed of grant, bargain and sale from Moses Potter to Charles Cartledge, the defendant in error, who was the plaintiff below, for the land in contest, in consideration of $5 therein mentioned, as also in consideration of a deed of indenture recited to have been made on the same day, by the same to the same, whereby, for the consideration and upon the conditions therein named, the former conveyed to the latter all the estate and'property, real, personal and mixed, whatsoever and wheresoever, of the said- Moses, except as therein excepted; the land in question being part of the property thereby conveyed, but lying in the State of Pennsylvania, the deed admitted in evidence is, as stated in it, executed that the same may be acknowledged and recorded in Pennsylvania, according to the laws thereof. The admission of the deed in evidence was objected to because it does not purport to be made for the purpose of conveying the land, but only for the purpose of being recorded in Pennsylvania; second, that by the deed itself it appears that Moses Potter was devested of all title, previous to the execution of it, by another conveyance to Cartledge; third, because it appears by it that there was another deed from Moses Potter to the plaintiff for the same land, and if two deeds were executed at the same time, they are but one conveyance, and one cannot be read without the other; and, fourth, because the plaintiff could not read the deed offered in evidence without the recital, it being part of the deed and part of the consideration. The deed offered and received in evidence appeared to have been executed in Baltimore, State of Maryland, and acknowledged by the bargainor before H. P. Hepburn, a commissioner appointed by the governor of this átate for that purpose, which, under the provisions of our recording Acts, rendered it admissible to be recorded in the recorder’s office of the county where the land conveyed by it was situate. But the deed recited in it, as appears by a certified copy thereof from the office of Baltimore county, established for the purpose of having deeds conveying lands recorded therein, was acknowledged before two justices of the peace of Maryland, in conformity to the laws of the same State, so as to render it admissible to record in the last-mentioned office, but did not make it so in any of the offices of this State; hence the propriety, if not in some degree the necessity, of making the deed offered and received in evidence for the purpose of giving the possession and seisin, and making good the title and assurance of the land mentioned in it, according to our Act of Assembly of 1715 on the subject, as effectually as if the land had been conveyed by deed of feoffment with livery of seisin; for the deed recited in it, if made merely for a good consideration, at most only amounted to a covenant on the part of the bargainor to stand seised of the land lying in this State for the use and benefit of the bargainor, or, if made for a money or other valuable consideration, raised a use in his favour, but gave no possession or seisin thereof to the bargainee. The deed offered and received in evidence having a money consideration of $5 mentioned in it, besides that alluded to in the recital, and having been properly acknowledged by the bargainors, and afterwards recorded in the recorder’s office of the county where the land conveyed by it is situate, it was clearly admissible in evidence for the purpose of showing that the title, possession and seisin of the land had all passed to and become vested in the bargainee, Charles Cartledge; an effect not produced by the deed recited in it. Even in the case of a conveyance of real estate by lease and release, a recital of the lease in the release is sufficient evidence of its execution and existence; and without its being produced, the release, if properly acknowledged or proven, may be read in evidence; though the lease in such case is indispensably necessary, in order to give complete efficacy and operation to the release as a conveyance to pass the freehold or inheritance. We therefore think that there is no weight whatever in the objections made to the reading of the deed in evidence.

The second error is a bill of exception to the opinion of the court rejecting Lewis W. H. Geise, who was offered as a witness to testify on behalf of Strawbridge, the defendant below. It appeared that Lewis W. H. Geise, the person offered as a witness by the defendant, had been and still continued to be the lessor of the defendant, as to the land in question, until the 31st day of March 1842, sixteen days after the commencement of this action, when he conveyed his reversionary interest therein by deed to William Huling Geise, his son. Thus claiming to hold the possession of the land by his tenant the defendant, and preventing the plaintiff below from occupying antf enjoying the same, it is clear, if the plaintiff should recover in this action, that Lewis W. H. Geise would be answerable to the plaintiff for the mesne profits of the land as long as he held it by his tenant during the ownership of the plaintiff. ' Being thus interested to prevent the plaintiff’s recovery, he was not competent to testify for the defendant.

The third bill of exception was taken to the opinion of the court admitting the plaintiff below to prove by Charles Porter that, besides the consideration mentioned in the deed of conveyance from Potter to Cartledge for the land in dispute, Cartledge, as a farther consideration therefor, had released Potter from several thousand dollars of a debt owing to him. This was offered for the purpose of showing that Cartledge had not only given Potter a valuable consideration for the land, but likewise a consideration in amount and value fully equal to the highest value of it. It was certainly competent for the plaintiff'to snow an additional consideration to that mentioned in the -deed, provided it was not directly repugnant to and inconsistent with the one mentioned in it. The additional consideration offered to be proven does not appear to have been repugnant or inconsistent with that set out in the deed, and was therefore such ;as the plaintiff might be allowed to prove. ‘ '

As to the fourth and fifth bills of exception to evidence, it is sufficient to say that we can perceive no error in them, or any ground upon which to raise a doubt as to the correctness of the opinion of the court in admitting the evidence therein respectively mentioned.

The remaining exceptions are to the charge delivered by the court to the jury; but they all relate to- the question attempted to be raised by the-counsel of the defendánt below, whether Moses Potter did not obtain the deed conveying the land in controversy to him from Lewis W. H. Geise and wife, by fraud; and although Charles Cartledge was not a party thereto, whether he was not affected with notice of the fraud, if any such was practised by Potter on Geise, when he purchased of Potter, as Potter was out of possession, and the land at the time in the possession of Straw-bridge, the tenant of Geise. If, however, it be that no evidence was given, on the trial of the cause, tending in any degree whatever to prove a fraud practised by Potter on Geise in purchasing the land of him, the matters excepted to in the charge of the court become wholly immaterial, and need not therefore be noticed or inquired into. I have read over all the evidence as set forth in the paper-book, and a-m unable - to discover even a spark which tends, in the slightest degree, to show that a fraud was practised by Potter in obtaining from Geise a contract for the sale and conveyance of the land, or that the slightest artifice or unfairness was used or resorted to ’by Potter to induce Geise to make the contract. The evidence, if it proves anything, proves that Geise was particularly solicitous to sell his land for morus multicaulis trees, and that he employed Ebenezer Centre as his agent to effect that object; that Centre, under the authority of Geise, called on several persons who had such trees for sale, and conversed with them on the subject, before he called on Potter, but found on talking with Potter that he could effect a more advantageous contract for the sale of the land for Geise, than with any of the others, and accordingly made a contract, as the agent of Geise, with Potter for the sale of the land, which contract was approved and confirmed by Geise after he had inspected the trees. It is true that afterwards, when the time came around at which Geise was to make a deed of conveyance of the land to Potter, and take the morus multicaulis trees according to the terms of the contract, he discovered some backwardness about doing it, perceiving, probably, that morus multicaulis trees were falling in price, and likely to become unsaleable before he could sell or dispose of them. This, however, furnished no ground whatever for not complying with his contract and carrying it into execution according to its terms and conditions. As an honest man he was bound to do so, whatever the loss might be that would attend his doing so. And no doubt his seeming unwillingness to carry the contract into effect according to its terms, and as the execution of it was likely to prove advantageous to Potter, induced Potter to promise the wife of Geise $400, if she would join her husband in executing the deed of conveyance of the land to him. And doubtless the same motives induced Potter about the same time to promise Centre that if Geise did not pay him his commission for selling the land, he would if Geise executed the contract. But to say, because Potter became very anxious to have the contract, after it was made, carried into execution, and did much more than he was bound to do in order to get an execution of it without a suit, that his conduct was therefore fraudulent, or even in the slightest degree savoured of fraud, would be contrary to all reason and justice.

Judgment affirmed.