New York & Ontario Land Co. v. Weidner , 36 W.N.C. 461 ( 1895 )

Opinion by

Mr. Justice Mitchell,

An outline of the facts in chronological order will assist in the consideration of the assignments of error.

1. 1868. Deed by appellant to Dolph, predecessor in title to appellee.

2. 1888. First ejectment, Appellant v. Dolph. Nov., 1892, judgment; and Dec., 1892, rule on appellee, terre tenant, to bring second ejectment.

3. 1889 and 1890. Deeds by Dolph to Kerr, and Kerr to appellee, and death of Dolph.

1890. Bill by Dolph’s executors to reform acknowledgment of deed of 1868 from appellant to Dolph.

1891. Act of assembly relative to deeds. All the matters under this head occurred during the pendency of the first ejectment.

4. 1893. Present ejectment by appellee v. appellant.

It is claimed by appellant that the first ejectment was conclusive, being founded on a purchase of an interest in land by an administrator from one of the heirs, and as alleged, upon misrepresentations as to the value of the estate. And appellant claims that although an administrator has no title to the real estate, be is in the position at least of a quasi trustee, and therefore within the rule as to purchases by trustees from their cestuis que trust. Without going into this question it is sufficient to say that there is nothing on this record to show that that was ,an equitable ejectment. It is denied by the appellee, and it is clear that the appellant’s claim in that action was partly if not exclusively on the defective acknowledgment of the deed of 1868. The record was offered in evidence “to show a former action of ejectment, and also to show air action pending when the act of 1891 was passed,” and prima facie it was against the conclusiveness of the first ejectment, for it showed a rule by the appellant on the appellee to bring another ejectment or be barred.

Secondly, appellant argues that the act of 1891 does not apply to this suit, because in a large sense, to wit, in the sense of the controversy between the parties, it was pending at the time the act was passed. This claim however is untenable. The word used in the proviso to the statute is not “controversies” but “suits,” and the legislature is presumed to know that the controversy in ejectment is not settled by a single suit. The first ejectment was pending but judgment was entered after the act was passed, and on habere facias the successful party was put into possession. That suit was certainly ended, and the present writ, subsequently issued by a different party and under compulsion of a rule, began a new and different suit.

But it is said that as applied to this case, the act of 1891 would violate section 54 of article 8 of the constitution that no law “ shall be passed granting powers or privileges in any case where the granting of such powers and privileges shall have been provided for by general law, nor where the courts have jurisdiction to grant the same, or give the relief asked for.” The application of this argument is not quite clear. The section of the constitution quoted is a prohibition against local and special laws, while the act of May 12, 1891, P. L. 53, is a general law applicable to all eases except those pending at the time of its passage. The exclusion of all retroactive force does not detract from its general character. If it be meant that the act of May 25, 1878, P. L. 149, already supplied a remedy, nevertheless the legislature might provide a new and different one. Under that act the executors of Dolph filed a bill in 1890 to reform the defective acknowledgment of appellants’ deed to Dolph. That bill was dismissed, Hand v. Weidner, 151 Pa. 362, and if that was a final adjudication of the same rights between the parties, undoubtedly no new statute could revive the controversy. But it was not. It was a bill in aid of a defense to the action of ejectment and set out that the deed had been properly acknowledged by appellants, and asked to have the certificate corrected accordingly. The answer denied the facts averred, and under the chanceiy rule requiring two witnesses to overcome a responsive answer, the plaintiffs failed to make out their case. That decision was that the defective certificate of acknowledgment could not be reformed. The act of 1891 has an entirely different purpose. It does not seek to correct defective acknowledgments but makes certain deeds valid and admissible in evidence notwithstanding such defects. It is a general curative act, in line with the presumption of the common law which dispenses with the production of the subscribing witnesses to deeds more than thirty years old, and in line also with the prior acts of assembly of Feb. 24, 1770, April 3, 1826, April 16, 1840, April 10, 1849, April 15, 1851, May 5, 1854, March 20, 1860, May 25, 1874, May 26, 1874, and others, which may be found in Brightly’s Purdon’s Dig. tit. Deeds, etc., and which have been held constitutional: Barnet v. Barnet, 15 S. & R. 72; Tate v. Stooltzfoos, 16 S. & R. 35; Mercer v. Watson, 1 Watts, 330; Grim v. School District, 57 Pa. 433; Shrawder v. Snyder, 142 Pa. 1.

The errors assigned as to the admission and rejection of evidence require little discussion. W. Dolph was called to prove that by direction of Edward Dolph the subsequent grantee, he had told appellant that she had better accept the offer of Edward for if not she would get nothing out of the estate. The learned judge rightly held that this was insufficient to set aside a deed delivered, consideration accepted, and no effort to charge fraud until twenty years later.

The deposition of Warner, the justice of the peace who had certified the acknowledgment, was offered not to show fraud or deny his signature, but to contradict the fact that he had taken the acknowledgment. His testimony was not admissible for this purpose, and his deposition was inadmissible for the additional reason that it was taken in a different' suit between different parties.

A. J. Weidner was an incompetent witness. He was one of the grantors in the deed to Dolph and Dolph was dead. Nor was bis testimony in the equity suit made admissible here by his having been called there by the plaintiffs for cross-examination. Neither the issue nor the parties were the same. In the equity suit the appellee and Weidiier were codefendants, and Weidner was called by the plaintiffs. Appellee could not have objected and he was not bound by the plaintiffs’ waiver of the objection.

Judgment affirmed.