Nolan v. Sweeny

Mr. Justice Paxson

delivered the opinion of the court,

Whatever view we may take of the competency of Eleanor Nolan as a witness under the Act of 15th of April 1869, it was clear error to reject her evidence after admitting the plaintiff, Timothy Sweeny, to testify. The theory of the plaintiff was that he and his brother Bartholomew had given the use of the land to John Nolan during the lifetime of their father, in consideration of Nolan’s taking care of and keeping the latter. The theory of the defence was, that the agreement was made between Nolan, Bartholomew Sweeny and Timothy Sweeny, the elder, and that the gift of the land was absolute. It was therefore a vital point in the cause whether it was the plaintiff or his father who had entered into the agreement. It was equally important to ascertain what the agreement really was. John Nolan was dead and could not speak. The plaintiff was permitted to testify under objection to the fact of Nolan’s death; that the plaintiff ivas the Timothy Sweeny who had made the agreement with Nolan; and that plaintiff and his brother Bartholomew had given the use of the land to John Nolan for keeping their father. The plaintiff having thus been admitted to this extent in regard to the transaction with the dead man, he was estopped from objecting to Eleanor Nolan as a witness. As the record stands we cannot pass upon the propriety of the admission of the plaintiff’s testimony, as the learned judge of the court below declined to seal a bill as to that. We will therefore decide only what is before us — that it was error to exclude Eleanor Nolan after having permitted the plaintiff to testify. The witnesses stand upon an equality.

Aside from this question the judgment must he reversed upon the seventh assignment of error. The verdict is uncertain and is incapable of being reduced to certainty. The plaintiff brought his ejectment for the whole tract, and the verdict was “for twenty acres on the lower or south end of the tract.” How and where is the line to run ? Had there been any such reference to monuments on the ground, to recorded deeds, to diagrams filed of record, to warrants of survey, or identified agreements, as was said in Miller v. Casselberry, 11 Wright 377, the verdict might have been reduced to a certainty. But it lacked all these essential elements and should therefore have been set aside.

Another objection is that the verdict is for so much land in severalty; there had never been a partition of this property between Timothy Sweeny and his brother Bartholomew or his heirs; the verdict should have been for an undivided interest.

Judgment reversed, and a venire facias de novo awarded.