Baldwin v. Stier , 191 Pa. 432 ( 1899 )

Opinion by

Mb. Justice Gbeen,

The testimony of Ott and his wife fails to prove any existing indebtedness by Mrs. Schmuck to Mrs. Baldwin at or about the date of the conveyance by Mrs. Schmuck to Stier. The declarations of Mrs. Schmuck to the witness on that subject were made about 1863 to 1865, and the presumption of payment repeated nearly twice over, and the bar of the statute of limitations having intervened about five times, offered a sufficient reply to any allegations of indebtedness in 1889. The offers of testimony of these two witnesses as to declarations made after 1889 were properly ruled out, and the third and fourth assignments of error are dismissed. The declarations were made after the conveyance to Stier, and at a time when Mrs. Schmuck had no title. The indebtedness upon which the judgment was obtained by Mrs. Baldwin against her mother’s executor did not originate until March 6,1890, which was nearly six months after the deed was made to Stier. Under all the authorities the grantor’s declarations made after he has parted with his title cannot defeat the title of the grantee. There was no evidence of any fraud in the case, and the ruling in Souder v. Schechterly, 91 Pa. 83, has no application.

It is entirely clear that Mrs. Baldwin was incompetent to testify against the title conveyed by her mother to Stier. That title had devolved upon Stier by the act of Mrs. Schmuck. Stier is a party to the record, and the thing or contract in action is the conveyance of Mrs. Schmuck to him. The right of Mrs. Schmuck .to make that conveyance is the matter in controversy. Against that right, and in her own favor, the plaintiff, Mrs. Baldwin, proposes to testify, notwithstanding the death of the party to the contract and the closing of her lips as a witness. The very language of the clause e of section 5 of the act of 1887 applies directly to the case when it says, “ or any other person whose interest shall be adverse to the said right of such deceased or lunatic party.” That which is attacked is the right of Mrs. Schmuck to convey her own land to another. If the plaintiff can be a witness to defeat that right and thereby acquire for herself the property upon which the right was exercised, when the person exercising the right is dead, she can establish in herself an interest adverse to the right of the grantor to dispose of her own property at her own pleasure. The act contemplates and provides for the case where the party to a thing or contract in action is dead and, “ his right thereto or therein has passed ” to another who is a party to the record, and that is precisely this case. The testimony of the plaintiff is prohibited in that contingency because it is adverse “ to the said right of such deceased party.” In King v. Humphreys, 138 Pa. 310, the facts appear to raise the identical question presented here. Norman King was the plaintiff in an ejectment against Lillie M. Humphreys and her husband. Louis King was the former owner, and he had conveyed the title to Mrs. Humphreys, and died intestate. On the trial, Norman-King, the plaintiff, offered to testify against the validity of the conveyance to Mrs. Humphreys, by giving in evidence facts occurring in the lifetime of the grantor tending to invalidate the deed. The witness was objected to on the ground of incompetency under the act of 1887, and was rejected by the court below and we sustained the decision. In Crothers v. Crothers, 149 Pa. 201, the action was ejectment to recover a tract of land which had been conveyed by a father to one of his sons, and after his death another son brought the action, alleging that the deed was invalid. The plaintiff offered to testify in his own behalf and was rejected. Our Brother McCollum, delivering the opinion said, “It is apparent therefore that the litigation involves a transaction to which Samuel J. Crothers and his son Leman were parties, and which his son William is now seeking to invalidate. Prima facie, the interest of Samuel Crothers passed by his own formal and properly authenticated act to Leman, who is a party on the record, and whose title thus acquired is the subject of the controversy. The interest of William who is the opposite party on the record, is adverse to this title, and his contention involves a denial of the right of the deceased grantor to transmit it. Is he a competent witness to testify to facts which he alleges in avoidance of his father’s deed ? An answer to this question is found in King v. Humphreys, 138 Pa. 310. In that case, as in this, the plaintiff claimed title by descent from his deceased father, and his sister, the defendant, claimed under a deed from him. It was alleged there, as it is here, that at the time of the execution of the deed the grantor had not sufficient mental capacity to make it, and that the grantee obtained it from him by fraud and undue influence. It was held that the plaintiff was not a competent witness to matters on which he relied to set aside the deed.” In Van Horne v. Clark, 126 Pa. 411, cited for the appellant, the witness was offered in support of the disputed title, and not against it, and therefore did not come within the prohibition of the act. The facts in Brown v. Carey, 149 Pa. 134, have no analogy with the facts in the present case, and do not raise the same question. The assignments of error are all dismissed.

Judgment affirmed.