Matthews v. Matthews , 1899 Pa. Super. LEXIS 145 ( 1899 )

Opinion by

William W. Porter, J.,

We must sustain the ninth assignment of error. The testimony of Clara J. Matthews should not have been admitted. This is a suit in ejectment. She is one of the defendants named in the writ. The plaintiff claims by a deed from a man now dead; the defendants by a parol gift from him. By section 5, e, of the act of May 23, 1887, she might have made herself a competent witness by disclaiming of record any title to the premises in controversy at the time the suit was brought and by paying into court the costs accrued at the time of disclaimer or giving security therefor. This she did not do, but executed a deed conveying or releasing her interest to her two minor children who were eodefendants. It is contended that by so doing she was made competent under section 6 of the same act providing in respect to a person incompetent under section 5 by reason of interest, and called to testify against interest, that “ such person shall also become fully competent for either party by a release or extinguishment in good faith of his interest, upon which good faith the trial judge shall decide as a preliminary question.”

The witness says: “Q. Have you released your interest in this property ? A. I have released all that, all my interest in this property to my orphan children. ... I delivered my deed to W. P. Wampler their guardian. Q. When you speak about him being their guardian, he is their guardian in this case? A. Yes, sir.” This was done the day preceding. This was not a release nor an extinguishment within the meaning of the act as it has been construed in Darragh v. Stevenson, 188 Pa. 397. The deed carried the interest of the mother to the children, codefendants. It was not a release, as it was not made to the party, against whom the claim is asserted nor for his benefit. It was not an extinguishment, for the full claim is still in existence with no change but a transfer to the two remaining claimants. Quoting from Mr. Justice Mitchell, “ The words used in the statute if taken in their strict meaning would require that the witness’s interest in the subject should be effectually terminated not only as to himself but as to the other party against whom he is about to testify. This result is fully implied in the words, release and extinguishment. An assignment is altogether different. It terminates the claim only so far as the witness himself is concerned, leaving it in full force as to the party charged by it.”

Futhermore it may be added that the same case is authority for holding the document insufficient to make the witness competent because not executed in good faith, as the conclusion is well nigh irresistible that its purpose was to evade the disqualification and give an advantage “ which the statute intends to prohibit.”

The remaining assignments are to the refusal of the court to give binding instructions for the plaintiff, and to the admission of evidence of declarations of Lewis Matthews showing a gift to his son, through whom the defendants claim title. If the evidence was admissible the case must have gone to the jury. It was supplied by witnesses who testified that Lewis Matthews had in the presence of his son, the donee, and of the witnesses said, that he had given the real estate in dispute to his son, using the past tense of the verb and referring to a past transaction. Two other witnesses testify that with both the alleged donor and donee of the land present, the former used the present tense of the, verb, — one witness giving the words as “ I give this to Ed.,” the other “I give Ed. this ground to build himself a house. I want to help Ed. along.”

A father may in Pennsylvania make a parol gift of land to a child.’ The proof must however be direct, positive, express, and unambiguous to take the transaction out of the operation of the statute of frauds: Erie v. Knowles, 117 Pa. 77. But “rigid as the rules are that are prescribed for this class of controversies it is still the law that where a parol contract of sale is precise as to the terms and subject-matter and the vendee has taken possession in pursuance of it and made valuable improvements with the assent of the vendor, it is not within the statute of frauds: ” Hart v. Carroll, 85 Pa. 508.

In view of the long undisputed possession of the property by the donee and his family, of the unopposed receipt of the rentals and of the expenditure of moneys for improvements, we are of opinion that the declarations of the donor both in words indicating a present gift and in words indicating a past and completed gift were admissible in evidence. Many of the cases discuss the effect of such evidence without criticism of its admissibility, but in Sower’s Administrator v. Weaver, 84 Pa. 262, 269, Mr. Justice Gobjdon speaks thus of evidence of a declaration in the latter form: “ This declaration, made as it was when the parties were face to face, accompanied by the act of the assessment of the land to the defendant by the direction of the one and the assent of the other of the parties, was not merely corroborative but direct, independent and primary evidence of the gift.”

We are of opinion that the evidence of the declarations of' the donor is admissible, and that there was sufficient proof of the gift of the quality required by the law to require the case to go to the jury on the credibility of the witnesses under proper instructions. As the case must go back for trial further discussion of the merits involved would be inappropriate.

The ninth assignment of error is sustained and the remaining assignments are dismissed.

The judgment is reversed and a venire facias de novo is awarded.