Montelius v. Montelius , 209 Pa. 541 ( 1904 )

Opinion by

Mb. Justice Bbown,

In this ejectment, brought by the appellees on the legal title of their testator, the appellant, in attempting to sustain his equitable ownership to the property, was incompetent to testify to anything that had occurred during the lifetime of the decedent. Under a general objection, he was permitted to testify to what had taken place between himself and his brother, Walton H. Montelius, during the lifetime of their father; and the plaintiffs then, on the ground of his incompetency to so testify, moved to strike out all of this testimony. The motion was allowed and the testimony embraced in the first assignment of error stricken out, with no exception taken by the defendant to the action of the court in doing so.

It is conceded that, under the act of 1887, the appellant was incompetent to testify to what is alleged to have occurred between him and his brother prior to his father’s death, but it is contended by his counsel that, by the Act of J une 11, 1891, P. L. 287, he was a competent witness. In the face of the plain words of that act, it is difficult to understand how such a position can be seriously taken. They are, “ That hereafter in any civil proceeding before any tribunal of this commonwealth, or conducted by virtue of its order or direction, although a party to the thing or contract in action may be dead or may have been adjudged a lunatic, and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on a record who represents his interest in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract or any other person whose interest is adverse to the said right of such deceased or lunatic party, shall be a competent witness to any relevant matter, although it may have occurred before the death of said party or the adjudication of his lunacy, if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testif}1", and who does so testify upon the trial, against such surviving or remaining party or against the person whose interest may be thus adverse.” The alleged relevant matter here occurred between the appellant and Walton H. Montelius, who was living at the time of the trial, but who, if competent to testify, did not do so against the surviving son whose interest is adverse to the right of their deceased father. From Roth’s Estate, 150 Pa. 261, decided in 1892, down to Rudolph v. Rudolph, 207 Pa. 339, we have uniformly held, when it has been urged that the purpose of the act of 1891 is very broad, that its words have but one meaning, and that the lips of one who would have been incompetent before its passage are unsealed only when its conditions of his competency arise on the trial. In support of their view counsel for appellant cite Irwin v. Patchen, 164 Pa. 51, in which case, it is true, the late Justice Gjreen said, “ The act authorizes the admission of testimony of one of the parties to facts transpiring before the death of the deceased party or person, if the relevant matter occurred between the witness and some other living and competent person.” As this is not the first time these words have been cited to us to sustain the position taken by counsel for the present appellant, it is proper that we should stop any further reference to' them for such a purpose. The competency of Henrietta Irwin, one of the plaintiffs, to prove that she had paid certain taxes on the land in dispute was objected to on the ground that Horace Patchen, under whom the defendants claimed, was dead. In the opinion of the court, immediately preceding the quoted words is a statement that she had made the payments after the death of Patchen, and the careful reader of the case will at once notice that the question of her competency under the a.ct of 1891, was not before the court. In referring to it after it had been cited, the quoted remark, under the circumstances to be regarded as a mere passing one, was made without adding the proper qualifying words, which certainly would have appeared if the question in the present case had been íaised.

The second assignment of error must be sustained. It brings to our notice an unusual record. Just before closing his case an offer was made by the defendant “ to prove that Walton H. Montelius was the agent and representative of Alfred M. Montelius, whose executors the plaintiffs are; that in pursuance of authority given by the decedent to his said agent, and directions to that effect, he made a contract with the defendant to purchase the property for him at the sheriff’s sale; and that subsequently the terms of the contract were carried out and the purchase money paid by the defendant, who has remained in possession to the present time.” On objection to this, the trial judge, without formally passing upon the offer, simply said: “ All offers will be considered as proven,” adding, “ I will enter a motion for a new trial, and in the meantime the defendant remains in possession of the property.” In disposing of this motion he refused to disturb the verdict, and judgment was entered upon it. Whether the defendant’s proofs would have come up to his offer, it is not for us to consider. He should have been allowed to submit them in support of it, and, if he had succeeded as proposed in it, in showing that Walton H. Montelius as the agent of the decedent, in pursuance of authority given him by his principal, had made a contract with the appellant to purchase the property in dispute for the latter at the sheriff’s sale; that subsequently the terms of the contract were carried out and the purchase money paid by the appellant, who had remained in possession of the property up to the time of the trial, a verdict could not have been directed for the plaintiffs. This is too clear for discussion, and when the defendant, instead of being permitted to submit his proofs, was told by the court that all his offers were to be considored as proven, the error in immediately thereafter directing a verdict ' against him is so manifest that it calls for prompt correction.

Judgment reversed and a venire facias de novo awarded.