Emig v. Diehl

Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1873.

Though we have no express decision upon the subject, it seems clear upon principle that the deposition or testimony of a witness formerly taken in the same cause, can be read in evidence on showing that he is sick and unable to attend, insane or in such a state of senility as to have lost his memory of the past, equally as where he is dead or out of the jurisdiction: 1 Greenl. on Ev., § 163, n.; Jack v. Woods, 5 Casey 375. The evidence that Philip Smyser fell within the category of loss of memory and general mental incapacity from old age, was very ample. Nor was it necessary to have him in court for examination. It would have been a painful and improper exposure, and no rule of law requires it. Besides, he would not have understood the meaning of the subpoena— would not have attended, perhaps, voluntarily — and an attachment against him for contempt would have been entirely out of the question. It was abundantly proved, that at the time the deposition was taken he was in the possession of his memory and reason. It was therefore rightly received. »

When this case was tried before the learned judge below on a former occasion, ho rejected all the offers of testimony, and directed a verdict for the defendant. The judgment was reversed in this court: Diehl v. Emig, 15 P. F. Smith 320. It was decided that the testimony thus offered and rejected would have made out a case for the jury. Upon a careful examination of the evidence returned with this record, we think that these offers were made good, and we see no reason to reconsider and overrule the decision formerly made. With the weight of the evidence, we have nothing to do. The court below, if dissatisfied with the verdict on that ground, should have sent it to another jury. Two verdicts the same wra.y would have been a good reason why the last should stand, even though against the opinion of the court. But it is a question which the law has wisely confided to the discretion of that tribunal. We cannot review it.

If the testimony of Smyser was believed, a deed was written by the witness and executed by John Emig, conveying to his daughter Sarah, in fee simple, the farm in question. It was not necessary that the witness should be able to state from memory all the words of the deed. It was in the usual form as he stated, and he might have been cross-examined as to the particular parts in detail. Until some evidence w'as given to the contrary, it must be presumed to have been without any power of revocation. It is true, and it is perhaps a sufficient explanation of the fact that John Emig afterwards disposed of the property by will — that it is not an uncommon vulgar error, that every voluntary deed made without consideration is revocable by the grantor. John Emig may have changed his mind as to the gift of this farm to his daughter, and as it had not been put on record, supposed that the destruction of it would accomplish his purpose. There was evidence, however, not only that such a deed had been executed, but that it had been delivered. The testimony of Andrew Landis alone of the declaration by John Emig, that “ the farm was Sarah’s, he had given her the deed for the farm,” would have carried the case to the jury as far as that question was concerned. It was corroborated, however, by many other acts and declarations of the grantor.

Was there then sufficient evidence to account for the non-production of the deed ? Undoubtedly, in the first instance the onus was on the plaintiffs. There must be evidence to shift this onus before the judge could submit the case to the jury. It must be such too as a reasonable man might justly found an opinion upon, not a mere scintilla. There certainly was evidence from which, if the deed had been executed and delivered, the jury might reasonably infer that it had been handed by Sarah to her father for safe keeping. It is an undisputed fact that upon the occurrence of a fire in the neighborhood, John Emig procured a tin box to keep his papers in. Elizabeth Zinn testified: “ The old man said, Sarah has given me all her writings, and I have put them in bank in my tin box. Mr. Emig said there had been a fire and then he had got a tin box made to put Sarah’s writings in and his too.” This was said at a time when, according to the witness, he was speaking of the farm. Michael Emig testified: “ I came to father’s once, after a fire had occurred in the alley ; then he said he had got a tin box made for himself and put his writings in it. Then he said, Sarah gave me her writings, too, and I put them in the box and put it in the bank, so that it wouldn’t burn.” This was entirely natural and probable, and if her writings generally were deposited in the box, the presumption would be that her unrecorded deed for the farm, no doubt the most valuable of them, would be put there with them. This point was submitted to the jury by the learned judge, with remarks upon the presumption against the destruction of the paper either by John Emig or his executors, of which certainly the plaintiffs in error have no reason to complain. The not examining Sarah herself, though she was in court, was a circumstance to be considered by the jury.

The description of the premises in the writ was sufficiently certain within all our cases: Clement v. Youngman, 4 Wright 341; Smith v. Brotherline, 12 P. F. Smith 461.

Judgment affirmed.

Mr. Justice Williams dissented, “ On the ground that the evidence does not show that the plaintiffs made any search for the alleged lost deed.”