Brown v. Carey

149 Pa. 134 | Pa. | 1892

Opinion by

Mb. Justice McCollum,

This is an action of ejectment brought by Henry Brown, appellant, against John F. Carey, appellee, for fifty acres of land in Bell township, Jefferson county. The appellant claims title to the land under a deed from John Wilson & Son, who purchased it at a sheriff’s sale on a judgment and execution against the appellee. The sale to Wilson & Son was on Dec. 11,1878, and the sheriff’s deed to them was delivered on Feb. 20,1879. The judgment on which the sale was made was entered on Dec. 1, 1868, and the lien of it was continued by amicable revivals. Wilson & Son conveyed to Brown, Jan. 19, 1881. These facts are shown bj7 the records and deeds, and are undisputed. The defence made by the appellee is founded on his wife’s title. In 1854 Joseph McPherson owned the land in dispute, and sold it to Sarah Ann Carey, the wife of the appellee, for $150. She then paid $125 of the price from money given to her by her mother, and, with her husband, took possession of the land, and has since resided on it. Prior to Nov. 29,1860, she paid the balance of the purchase money from the proceeds of timber which was cut on the land and sold by her direction. On the day last mentioned a deed was made by her vendor, in which, by his own or his scrivener’s mistake, the name of John F. Carey was inserted as grantee. This deed was received by the appellee for his wife, to whom he immediately delivered it, and she retained but did not record it. The mistake in the name of the grantee was not known to her or her husband, and the explanation of their ignorance of it is found in the fact that neither could read writing. When it was discovered, the deed was taken to the grantor, who promptly admitted the mistake, and, as he supposed, corrected it by inserting the name of Sarah Ann Carey in place of the name of John F. Carey. The deed, thus altered, was recorded on June 10, 1879. These facts are established by the verdict of the jury, and we think the evidence on which they were found is sufficient to support the verdict if the appellee and his wife are competent witnesses to matters occurring in the lifetime of Joseph McPherson, the grantor, who died before the trial. If they are not competent to testify to such matters material to this issue, the judgment must be reversed, because their evidence was admitted by the court and considered by the jury. In deciding this question it is important to keep distinctly in view the nature and subject of the controversy. It does not involve the validity of the title of Joseph McPherson, the deceased grantor, and his estate cannot be affected by the result of it. It is certain that he parted with his title by the sale in 1854, and the deed of Nov. 29, 1860. The sale was to Sarah Ann Carey, and the deed to her husband, who admits that she bought the land and paid for it from her separate estate. The appellant now has the title which the grantee acquired by this deed. What is it ? Clearly the title which remained in the grantor after the sale and payment of the purchase money and before the conveyance—a naked legal title in trust for Sarah Ann Carey, the beneficial owner. The appellant takes nothing by the mistake in the deed, and the competency of the witnesses is not affected by it.- If Sarah A. Carey had been named therein as grantee, the question of her and her husband’s competency to testify to her purchase of the land with her own money would be the same as now. It is claimed that they are disqualified by clause (e), § 5 of the act of May 23, 1887, but we do not think so. They have no interest adverse to any right of the deceased grantor, and there is no party on the record “ who represents his interest in the subject in controversy within the intendment of the statutory provision relied on to exclude them. The possession of Mrs. Carey was consistent with her title, and sufficient, in the absence of a recorded title in her husband inconsistent with it, to put a purchaser on inquiry. A married woman is permitted to acquire and hold real and personal property, and her possession of it, as respects notice to purchasers, has the same effect that is allowed to a possession by her husband of his own property. A husband may live with his wife on her farm, and assist in tilling it without impairing her title to the farm or its products, or subjecting either to liability for his debts. The purchasers at the sheriff’s sale acquired the title of the appellee, and transmitted it to the appellant. It is not sufficient on the facts found in the case to give him possession as against Mrs. Carey, and these facts are available to defeat his action. In conformity with the views expressed in this opinion the specifications are overruled.

Judgment affirmed.

May 4, 1892. Motion for reargument filed.

Pee Cueiam, May 5, 1892. Motion denied.