1 Grant 114 | Pa. | 1855
The opinion of the court was delivered
— Both parties here claim title under Philip Couch, the plaintiff’s late' husband. He conveyed the land to Conner, his father-in-law, in 1812; and he, in 1826, conveyed it to Mrs. Couch, allowing her husband a maintenance for life out of it. This conveyance has never been recorded, and on it the plaintiff’s claim is founded. The defendant, Sutton, shows that the conveyance from Couch to Conner was intended as a mortgage, that it was satisfied, and that by sheriff’s sale, in 1886, Couch’s title was divested, and in 1840, it became vested in Kingston, from whom Sutton purchased. The questions raised here relate to the legitimacy of the principles involved in the defendants’ evidence.
1. The main principle decided by the court below is involved in several questions of evidence and expressed in the charge, and is this, that declarations of the grantee of land, though made after the conveyance, are admissible, with corroborating acts and circumstances, such as the grantor’s continuance in possession, and the like, to show that an absolute deed was intended as a mortgage. This principle, thus confined to cases of alleged mortgage, is too well settled to require any discussion by us.
2. Another principle involved in an admission of evidence is, that even a married woman, being bound like others by the recording acts,°may be estopped from claiming under an unrecorded deed, if she sees one in possession, and making valuable improvements, under a title that is good against any other title that she may have, and he has no notice or knowledge of her title under such a deed. This was correctly decided.
3. Another principle is involved in the proceedings to perpetuate the evidence, against the heirs of Conner, including Mrs. Couch, of the title now claimed bythe defendants, and it is this : where a bill is filed against a married woman to perpetuate evidence against a title that she might set up, and her husband is not made a party, because he is supposed and alleged in the bill to be dead, and at the taking of the- evidence counsel appears for the defendants, and the husband also is present and examined as a witness, and the- decree of perpetuation is made without any objection having been stated on account of the husband not being a party with his wife, it is too late to raise the objection when the controversy has arisen, and the testimony is offered to be read.
This, also, is right, for married women are bound by the judgment of courts in adversary proceedings in which they are entitled to appear, just as other people are; and this saves us from any special notice of the fraud involved in her concealment of her real title, while parties were providing against the possibility that she might set up a claim as an heir of Conner. All the objections to the record relate to irregularities that are cured by
4. Thomas Wadsworth was not interested in the bill to perpetuate testimony, for he was no party to it, and it could not be used for or against him ; and we do not see that he has now any interest, either by possession of, or title to, any part of the land in controversy.
5. In the validity of-the sheriff’s sale of Wadsworth’s title, the plaintiff has no concern, for the verdict establishes that, without this, her right is gone.
Judgment affirmed.