Eckman v. Eckman

The opinion of the court was delivered,

by

Sharswood, J.

The first three assignments of error are not according to Rule VIII., 6 Harris 578, and must therefore be dismissed. We may say, however, as matter of grace and not of. right, that the plaintiff in error suffers nothing by these errors not having been properly assigned. Benjamin Eckman claiming in this ejectment as the devisee of Daniel Eckman, who was the plaintiff in the equity suit, the record of that suit was clearly evidence against him as privy in estate; and this being so, the testimony of Daniel Fulton, taken in that proceeding, was also admissible. It is within, the letter and spirit of thé Act of March 28th 1814, 6 Smith 208, which declares “ that any deposition taken or to be taken in any cause which, by the rules of law, may be read in evidence in the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the same parties or persons, their heirs, executors, administrators or assigns.” The subject-matter of thaksuit was the title to this land, and the particular question involved the same as here, the delivery of the deeds — Daniel Eckman to Benjamin Eckman and Daniel B. Eckman, dated September 6th 1859; and Benjamin Eckman is the assignee in law of Daniel Eckman. We have had more difficulty as to the admissibility of the opinion of the court in that case. It was properly perhaps no part of the record. But it seems to fall within the decisions in Carmony v. Hoober, 5 Barr 305, and Coleman’s Appeal, 12 P. F. Smith 252, that such an opinion may be resorted to as evidence that the decree or judgment was upon the merits and not upon any incidental or collateral question. No point was made below as to the effect of the decree — whether it was a decision upon the main question and conclusive — nor has such point been raised in this court. Had the plaintiffs in error wished to exclude the opinion so far as it respected the statement of facts, they should have requested the court to charge that though admitted and read in the cause for another purpose, it was no evidence of any fact, and in that point of view was.to he dismissed from their consideration.

The 4th, 5th and 6th points complain of the charge of the court and may be considered together. The learned judge below was of the opinion that the weight of the evidence was in favor of the delivery of the deed. This court thought so upon the same testimony in Eckman v. Eckman, 5 P. F. Smith 269, and we all agree in thinking so now. The opinion of the judge below was indeed very strongly expressed to the jury, but they were explicitly told at the same time that the question was for them to decide. We cannot say that there was any abuse of the discretionary power of the court to express their opinion upon the sufficiency of the evidence or that the jury were misled. In stating the evidence of Messrs. Amwake and Strohm, the learned judge may have been mistaken in attributing to them what was only a legitimate inference from their testimony. It was really immaterial what their opinions may have been on the question of the goodness of the deed: the important bearing of their testimony was the almost necessary, nay, inevitable inference that the two brothers had consulted them together without raising any objection to the deed on the score of its non-delivery. If there was a mistake committed as to their testimony it was evidently an inadvertent one, and had his attention been called to it at the close of the charge, the learned judge would have referred to his notes and either corrected the one or the other according to the fact. Upon a difference of opinion between the court and counsel I have frequently seen the witness himself recalled and asked to repeat what he had said. We do not think that the jury were misled by anything in these portions of the charge here assigned for error, and these assignments are therefore dismissed.

The 7th error assigned is to the answer of the learned court to the first point of the defendant below. The judge instructed the jury that there was no evidence that it was the intention of Daniel Eckman at the time of the execution of the deed not to deliver it until the grantees should make certain arrangements between themselves in regard to the property. Nor was there any such evidence, unless afforded by what occurred subsequently to the death of Jacob Eckman, and Daniel’s desire then that such arrangements should be made. Had these things followed close upon the execution of the deed they might have afforded some grounds for the inference, hut the date of the instrument is September 6th 1859, and Jacob Eckman died in 1862, three years after, leaving his elder brother Daniel, the grantor in the deed, to survive him. It was in the spring of 1863 that the two brothers, Benjamin and Daniel B., called upon Mr. Strohm to make amicable partition of the two farms, by mutual releases. It was then after the deeds of release were drawn, and were ready to be executed, that this unfortunate controversy between the two brothers arose by a disagreement about the profits, taxes and repairs of the farm derived from the will of their father, and then vested in them as tenants in common. We think it would not be a legiti'mate inference from this that old Daniel Eckman had originally intended that his nephews should make such an arrangement and not to deliver the deed unless they did.

The1 answers of the learned judge to the 3d and 4th points of the defendant below, which form the subject of the 8th and 9th assignments of error, were clearly right. It is one of the best established principles, for which no reference to authorities is necessary, that a deed shall always be so construed as to give it effect; ut res magis valeat quarn per eat. If it cannot be treated as a deed of bargain and sale because there was in fact no pecuniary consideration, yet if the consideration of blood did exist it shall be supported as a covenant to stand seised. Quacunque via data, therefore, this deed was good, and conceding that the reservation to the grantor of the rents and profits arising out of the I premises, was a life estate in the land itself, the remainder to the \ grantees was not a freehold commencing in futuro, but a future ' springing use, taking effect under the Statute of Uses. We may say here that in Pennsylvania a recorded deed will be construed as having the effect of a feoffment with livery of seisin or as a deed under the Statute of Uses, as will best accomplish the intention and design of the parties: Act of May 28th 1715, § 5, 1 Smith L. 95.

The 10th assignment of error, which complains of the answer to the 5th point of the defendant below, raises the question whether the deed of September 6th 1859 is not a testamentary instrument: by reason of the reservation to the grantor of the rents and profits for life. It is contended that it falls within the principle of Turner v. Scott, 1 P. F. Smith 126. There was a provision in the deed in that case not to be found in this: “ this conveyance in no way to take effect until after the decease of the said John Scott, the grantor.” Although in form a grant, these words were supposed to indicate that it was nothing but a declaration of what the grantor willed to be done after his death. But there is nothing of the kind in this instrument. ' It is a grant— and whether a bargain and sale or a covenant to stand seised, it enures to the use of the grantor for life, and after his death to the use of his nephews, the grantees, in fee simple, and there being no power of revocation contained in the instrument it was irrevocable.

Judgment affirmed.