Smith v. Rishel

Opinion by

Mb. Justice Fell,

The issue in this case was to determine the ownership of personal property levied upon by the sheriff. The plaintiff in the execution died after the levy was made, and her administrator was substituted on the record as defendant in the inter-pleader. The plaintiff in the interpleader claimed title by purchase from B. F. Crouse, the defendant in the execution; and at the trial he was called as a witness to testify that he had sold the property in question to her before the levy. Her testimony was offered for the same purpose. Both witnesses were objected to as incompetent, and the objections sustained; and a peremptory instruction was given to the jury to find for the defendant.

The objection to the competency of the plaintiff as a witness Avas well founded. She was a surviving or remaining party to the thing or contract in action, and a person Avhose interest was adverse to the right of the deceased party, and came within the excluding clause (E) of sec. 5 of the Act of May 23, 1887.

We see however no sufficient reason for the exclusion of B. F. Crouse. He. was not a party to the action, nor does it appear that he was a person Avhose interest was adverse to the right of the deceased. It is only on the latter ground that he could be objected to.

It is urged that he was interested adversely to the defendant to maintain the title to the property which he had sold to the plaintiff, and which he had impliedly warranted. It must be remembered however that his original title Avas not in question, and it was to that only that there was an implied warranty under which he might be liable to the vendee. He was called to testify that he had sold to the claimant the property levied on. Whether there had been a sale to her was the real question in controversy. If the sale was made in good faith it might fail for want of proper 'delivery; if it was made in bad faith it was invalid as intended to defraud creditors. In either event his title had passed, and in neither would any liability to the vendee rest upon him. Having delivered possession, he would not be responsible if the delivery did not meet the requirements of the law, and if there was fraud the vendee was a party to it. The contention of each party was founded upon his title and no question of its validity arose. He then had no pecuniary interest in maintaining the plaintiff’s title to the goods, and his interest would seem to be with the defendant to have them sold and his debts thus paid.

We are not aware that the question before us has been raised in this court since the first legislation enlarging the competency of witnesses, but it had previously been decided in favor of admitting such testimony in Babb v. Clemson, 12 S. & R. 328, and in Allentown Bank v. Beck, 49 Pa. 394, on the ground that the witness had no disqualifying interest in the controversy.

The first assignment of error is sustained, and the judgment is reversed with a venire facias de novo.