65 Pa. 320 | Pa. | 1870
The opinion of the court was delivered, May 12th 1870, by
It is elementary doctrine that the contents of a deed of conveyance lost, destroyed or suppressed, may be established by parol evidence in an action of ejectment, when its existence as a valid instrument has first been satisfactorily proved: McReynolds v. McCord, 6 Wright 288. The effect of such proof is of equal force in sustaining the title of the grantee as if the deed itself had been presented. This is so ex necessitate rei, otherwise titles might be defeated by fraud or accident, without fault on part of the vendee, and in disregard of the consideration for the conveyance. A rule like this would he so obviously unjust that it could not exist in any civilized land. A near equivalent of such a rule, would be any rule which should render such proof impracticable by technical requirements,or to the order of proof; such for instance as the requirement of perfect proof in the theory of a 'first step taken before a second should be attempted. All competent evidence in such a case should be received when offered, whether in logical sequence or not, especially if offered to be followed by what would make out a complete case if believed. When the testimony is in, it is the duty of the judge to inform the jury what the law requires to be extracted from the body of it in order to make out a good and valid case in law, and what effect a failure to do so would have. A party must begin with his proof somewhere; and where, is less important a great deal than its completeness. A judge will look at the latter with great care as being of the very essence of the contest, and at the former as a desirable result rather than an essential one.
We think the first offer of the plaintiffs below should have been received. It was not only orderly but essential. It went to prove
That portion of this offer containing the facts about the tin box, and the declaration about its containing his daughter’s writings and money, and the acts and doings of the executors in regard to it, together with the offer of testimony contained in the
There seemed to be some appearance of an idea in the mind of the court below,that the ground of the controversy assimilated itself to a case of parol sale, and hence declarations of the grantee could not be given in evidence. The evidence was not to prove a grant or sale by parol, but the existence of a deed containing the terms of a grant. The factum of a grant was not proposed to be proved — but the instrument containing it, and then the contents would show the grant, and the case would not be within the Statute of Frauds and Perjuries. The existence and loss of the deed was a fact in pais, to be proved like any other fact; of course its nature would require clear and full proof of the fact, but this would not exclude the declarations of the grantor, especially when corroborated by actual proof of the existence of the deed at one time.
We are of opinion that the other bills of exceptions contain no error as to the rejection of the testimony of the plaintiffs below. As the law stood the husband was not a competent witness, although he will be, we think, under the act above referred to, to prove anything occurring since the decease of the decedent, and that was what was proposed to be proved by him. The wife was incompetent under the Act of 1869, and will he under the Act of 1870, to prove what was proposed to be proved by her at the last trial. These errors are therefore not sustained; but the judgment must be reversed for the reasons given above.
Judgment reversed, and venire de novo awarded.