Ballentine v. White

Mr. Justice Sharswood

delivered the' opinion of the court,

The first specification of error complains that the learned court below admitted parol evidence to show that the transfer by White to Ballentine, dated April 1st 1855, though in form an absolute conveyance, was in reality intended by the parties as a mortgage to secure indebtedness then existing, and money to be subsequently loaned. The contention of the plaintiff in error is founded entirely upon the fourth section of the Act of April 22d 1856, Pamph. L. 533, but as the transfer in question was executed April 1st 1855, and that section is clearly prospective, as was held in Lingenfelter v. Ritchey, 8 P. F. Smith 488, it is unnecessary to consider this assignment further. It is, however, proper to add, that this court has decided the question in Maffitt’s Administrator v. Rynd, 19 P. F. Smith 387, where it is said that “ it cannot be maintained that the Act of April 22d 1856, has made any alteration in what has always heretofore been the established rule on this subject in Pennsylvania.” This also disposes of the sixth assignment.

In immediate connection with these assignments may be considered the fifth, that the court erred in refusing to affirm the first point of the defendant below, that the action of the plaintiff was barred by the limitation enacted in the sixth section of the same act. This point has also been heretofore considered by this court and determined adversely to the present contention of this plaintiff in error, in Harper’s Appeal, 14 P. P. Smith 320. It is there shown that the words “ to enforce an equity of redemption,” upon which reliance is placed, are confined to such an equity “ after reentry made for any condition broken,” and have no application to the equity of redemption of a mortgagor.

The third assignment of error is that the court erred in allowing the wife of the plaintiff to testify for him. But the language of the Act of April 15th 1869, is very explicit, that neither interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding. And the proviso only excepts the case of husband and wife testifying against each other. It is argued, as I understand, that as the wife must be subjected to cross-examination, she may thereby be compelled to give testimony against her husband. But so may her testimony in chief be when offered in behalf of her husband. He may have utterly misapprehended the effect of it, or indeed, may have been mistaken as to what it would be. The act is providing for the competency of the witness for the party for whom she is offered, not as to the effect of the testimony. She is offered for her husband on his behalf. When admitted, as by the act she must be, her husband must take all the risks of what her evidence will be, whether upon exami-' nation in chief or cross-examination.

As to the third assignment of error, that the court erred in refusing the nonsuit asked for by the defendant, it is clear that such refusal is not the subject of review in this court: Girard v. Gettig, 2 Binn. 234. The only proper course, as is pointed out in that case, is for the defendant to present the point or points upon which the nonsuit is asked, and request the answers of the' court to them in their instructions to the jury.

The fourth assignment of error is, that the court erred in admitting the testimony of so-called experts in regard to receipts which were in evidence. It was alleged, and direct evidence was given by the plaintiff below to prove, that the receipts had been altered, and then experts were offered to show that these alterations were not made at the same time with the body of the receipt. It was ruled in Fulton v. Flood et al., 10 Casey 365, that the testimony of experts is receivable, in corroboration of positive evidence, to prove that in their opinion the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. This case is indeed the converse of that, but the principle is undoubtedly the same, whether the evidence is of experts to attack or support the instrument.

It only remains to consider under the seventh assignment, whether upon the whole testimony, the case ought to have been, as it was, submitted to the jury. It is unquestionable, and is now horn-book law, in this state, that in controversies of this character —in equitable ejectments — the judge acts as chancellor, with the assistance of the jury, to determine the credibility of witnesses and questions of fact upon conflicting evidence. It is true that the character of the whole case as presented must be such as to satisfy the conscience of the chancellor, that the equity is clearly, not doubtfully, established by the evidence of the witnesses, if believed. How far he may be called on to exercise his discretion upon the credibility of witnesses it is not necessary to decide. That is now a very important question, since both parties are competent witnesses, and when their testimony is in direct conflict, the chancery rule may perhaps he invoked, that when the equity is distinctly denied by the defendant, his denial must prevail, unless other evidence he given than that of the plaintiff alone. In this case there was ample evidence by other witnesses than the plaintiff, both of acts and declarations by the defendant below, 'the plaintiff in error, to establish the equity, that the absolute deed was intended as a mere security for money-loaned and to be loaned.

Judgment affirmed.