Murray v. New York, Lackawanna & Western Railroad , 1883 Pa. LEXIS 115 ( 1883 )

Mr. Justice Paxson

delivered the opinion of the court,

# . The first three assignments raise substantially the same question, and may be considered together. The court below rejected the testimony of Sophia R. Murray, and the deposition of Harris Murray. The deposition was taken under a bill to perpetuate testimony. The witnesses' were the grantors in the deed of June 5th 1861, to Ellen M. Howard. The latter was deceased at the time of the trial below, and the evidence was offered for the purpose of impeaching her deed by showing that it was obtained by the exercise of undue influence upon the grantors, and for a purpose which was subsequently repudiated in part at least by the grantee. Sophia Tí. Murray was a party to this proceeding; Harris Murray, her husband, was deceased. The case comes precisely within the ruling in Karns v. Tanner, 16 P. F. S. 297, where it was- said : “ When one of two parties to a transaction is dead, the survivor and the party representing the deceased party stand on an unequal footing as to a knowledge of the transaction occurring in the lifetime of the deceased. The enacting clause (Act of 1869) had opened the lips of all parties, but when death came in it closed the lips of one, and even-handed justice required the mouths of both to be sealed.” Ellen M. Howard, the grantee is dead, as before stated, and it was sought to impeach the title of her devisee by the testimony of one of the grantors as to transactions which occurred prior to the death of the grantee. The inequality and injustice of this is so apparent that no extended discussion of this branch of the case is necessary. It is proper to add, however, that upon the tidal below the defendant offered Albert C. Howard, the husband and devisee of Ellen M. Howard, as a witness to sustain the deed. The witness was objected to by the plaintiff as ificompetent, and the court excluded his testimony for the same reason that it rejected the evidence of Sophia. IT. Murray, and the deposition of Harris Murray. The plaintiffs having established this principle upon the trial below have no reason to complain if we apply it here.

The fourth and fifth assignments refer to matters that were in the discretion of the court below. In such cases we reverse ouly for an abuse of discretion, and no such abuse has been shown.

The sixth assignment is not sustained. The paper referred to was executed by the grantors sixteen years after the deed to Ellen M. Howard, and under no known rule of law would it be evidence to impeach said deed or vary the terms thereof.

The remaining assignments allege error in the charge of the court. Complaint is made that the learned judge, in his instructions to the jury, said that, “In order to alter a written contract, by adding a stipulation, alleged to have been omitted, there must be clear, precise and indubitable evidence that it was the understanding of both parties that it should be inserted in the writing.” And again, that “ To reform a written agreement on the ground of fraud or mistake, the evidence must be clear, precise and indubitable,” and this or similar language was repeated to the jury seven times, as we are informed by the ninth assignment.

This instruction was not too strong, and as it was good law, its repetition to the jury could have done no harm. Speaking for myself, I do not think seventy times seven would have been too often ; speaking for the court, I will confine myself to tlie repetitions stated in the assignment. "We do not wish to be misunderstood upon this question. If a solemn instrument like a deed, which has been upon record for many years, can be reformed, and titles destroyed by parol evidence, which is anything short of “ clear and indubitable,” 'no one would care to hold real estate in Pennsylvania, for it would be a most uncertain holding. A deed ought to be worth something, yet it would possess little value if it could be set aside by loose testimony of parties in interest. Where the evidence of fraud, accident, or mistake is so direct and clear that a chancellor would reform the deed, it is one thing. Anything short of such evidence ought not to be submitted to a jury. This is the doctrine of the later cases : Spencer v. Colt, 8 Norris 314; Rowand v. Finney, 15 Id. 192, and in view of the present law of evidence, it would be hazardous to relax the rule.

We find no error in this record.

Judgment affirmed.