240 Pa. 379 | Pa. | 1913
Opinion by
This is an action of ejectment brought by William F. Burke against his brother, Patrick Burke, his sister, Julia Burke Keating, and Thomas Keating, her husband. The summons was issued on July 10,1909. John M. Burke, the father, is the common source of title through whom both parties claim.
From his statement and abstract of title, it appears that the plaintiff relies on a paper title consisting of a deed from his father and mother, John M. and Bridget Burke, to Patrick Burke, the defendant, dated January 7, 1892, acknowledged January 8, 1892, and recorded January 11,1892; a deed from Patrick Burke to Bridget Burke, his mother, dated January 8,1892, acknowledged January 9, 1892j and recorded January 11, 1892; and a deed from Bridget Burke to William F. Burke, the plaintiff, dated January 23, 1909, and recorded February 17, 1909. It is averred in the statement that all the defendants entered upon the land in question, ejected Bridget Burke from the same and continue to hold possession thereof. A claim for mesne profits is made against all the defendants.
The defense relies on title in Patrick Burke. He filed an answer in which he claims title from his father and mother through the deed referred to above. He avers
The sheriff returned that he served the writ on all of the defendants, “they being in actual possession of the within described premises.” The defendants entered the plea of not guilty.
The controlling question in the case, as will be observed, is whether the deed from Patrick Burke to Bridget Burke, his mother, is, as averred by him, a forgery and fraudulent. On the trial of the cause the plaintiff offered in evidence the writ, the sheriff’s return, the record of the alleged deed from Patrick to Bridget, the originals of the other two deeds, and then rested. Mrs. Keating having filed a disclaimer, she and Patrick were called as witnesses by the defendants but, on objection by plaintiff, the court ruled that they were incompetent to testify to anything that occurred in the lifetime of their mother, Bridget Burke, who died before the suit was brought. The defendants called John Meehan,, whose name appears on the record of the deed from Patrick to Bridget, as an attesting witness and also as the justice of the peace before whom the deed was acknowledged.. He was called for the purpose of showing that he did not attest the deed and that it was never acknowledged before him as a justice of the peace. This was the only evidence for the defense and the court holding it insufficient to invalidate the recorded deed, directed a verdict for the plaintiff. The defendants have taken this appeal.
The questions involved, as stated by the appellants, áre: (a) The competency of Julia Burke Keating as a-witness before filing the disclaimer; (b.) her campe
Mrs. Keating was called by the defendants for the purpose of proving that Patrick Burke’s name to the deed conveying the property to Bridget Burke was signed by Nellie Burke, his sister, in the presence of John Meehan, that Patrick was not present on the occasion, and that Meehan refused to be a witness or take the acknowledgment of the deed. Mrs. Keating was a defendant, the writ had been served on her, and she had pleaded to the action. She was, therefore, clearly incompetent as a witness before filing her disclaimer. Prior to the legislation in this State making parties competent witnesses, she would have been incompetent to testify. This has been ruled time and again by this court: Lies v. Stub, 6 Watts 48; Wolf v. Fink, 1 Pa. 435; Parke v. Bird, 3 Pa. 360; Noble v. Laley, 50 Pa. 281; Karns v. Tanner, 66 Pa. 297. The witness is not disqualified on the ground of interest but from considerations of policy: Kirk v. Ewing, 2 Pa. 453; Cambria Iron Company v. Tomb, 48 Pa. 387. In the former case, Rogers, J., delivering the opinion, says (p. 455): “There is no rule better established, than that a party to the record cannot be examined as a witness, and this not on the ground of interest, but from considerations of policy.” And in the latter case, Agnew, J., delivering the opinion says (p. 394): “He (co-defendant) was a party to the record. That a party to the record is incompetent as a witness, on the ground of policy, has become too firmly fixed to be changed as a rule of practice, except by legislation.”
There is no enabling legislation in this State which would make Mrs. Keating a competent witness before she filed her disclaimer. .The Act of May 23, 1887, P. L. 158, makes .all persons competent witnesses save
The disclaimer of Mrs. Keating filed on the trial of the cause by the defendants did not make her a competent witness. Where one relies on a statute to establish his competency to testify, it is incumbent upon him to bring himself clearly within its provisions. Here, the defendants filed the disclaimer under Clause E of Section 5, of the Act of 1887. They, however, failed to comply with the terms imposed by the statute and, hence, the disclaimer was not effective to make the witness competent. We have already referred to the exception in Clause E of Section 5 of the act. As said in Africa v. Trexler, 232 Pa. 493, the provision of the section relative
If, however, Mrs. Keating had complied with the Act of 1887 and paid all the accrued costs when she filed her disclaimer, there was another sufficient reason why she was incompetent to testify in the case as to anything that occurred in the lifetime of her mother. Thomas Keating, her husband, was a defendant and the writ was served on him. He joined the other defendants in entering the plea of not guilty. He was, therefore, clearly incompetent to testify, and by reason of his incompetency, his wife was also incompetent: Bitner v. Boone, 128 Pa. 567; Myers v. Litts, 195 Pa. 595.
We have carefully read the testimony of John Meehan, who, as alleged, took the acknowledgment of the deed from Patrick Burke to Bridget Burke. We agree with the learned court below that “Mr. Meehan’s recollection is extremely hazy” as to his part in the transaction. This is readily accounted for by the fact that the occurrence took place about twenty years prior to the time he testified, and that during the intervening years he had taken many acknowledgments of deeds and other instruments in writing. While in terms he said he did not take the acknowledgment, yet his testimony as a whole discloses the fact that he had neither a clear nor a distinct recollection in regard to the matter. He admitted in his testimony that he took the acknowledgment to the deed from John M. Burke and wife to Pat
It must be conceded that the grantor may attack a deed on the ground of forgery, either as to its execution
In Cover v. Manaway, 115 Pa. 338, an attempt was made by the plaintiffs to show that a deed was executed two or three years after the time it bore date, and three witnesses were called for that purpose and to show that the deed was fraudulent. The testimony was submitted to the jury and a verdict was rendered in favor of the plaintiffs. In reversing the judgment, ’ Mr. Justice Clakk, delivering the opinion, said (p. 345): “When a deed is found in the hands of a grantee, having on its
The assignments of error are overruled and the judgment is affirmed.