Evans v. Evans, Appeal, No. 288

Appeal, No. 288 | Pa. | May 25, 1893

Opinion by

Mb. Justice Green,

The difficulty with the first three assignments of error is that both the husband James Evans, and the wife, Emma C. Evans, were offered as witnesses by the wife, in support of her title, and for that purpose both of them were entirely competent, especially since the passage of the act of 1887. The husband was not a claimant of the title at all. On the contrary he testified to facts which tended to establish his wife’s title, and he was certainly competent to testify in her favor. Of course the wife was competent to testify in support of her own title. The disqualification which was held to exclude her in Pleasanton v. Nutt, 115 Pa. 266" court="Pa." date_filed="1887-02-07" href="https://app.midpage.ai/document/pleasanton-v-nutt-6238569?utm_source=webapp" opinion_id="6238569">115 Pa. 266, does not exist in this case.

We discover no error in the fourth assignment. It is technically true that the defendant in this issue was not claiming title, in all the goods in himself. He did claim the organ on the ground that he never gave it to Gertrude, but the other goods he did not claim as his own. But Mrs. Evans the plaintiff did claim them as hers, and the issue was made up in the usual way of a wager upon her title, in which she asserted that the right of property in the goods was in her, and the defendant denied that allegation. The real controversy therefore was upon the validity of her title. The inadvertent statement of the court as to the question being whether a part of the goods belonged to Mrs. Evans or whether they belonged to Walter G. Evans was entirely immaterial. The fourth assignment is discussed by the appellant on the general merits of the question of fact as to whether the wife owned the goods. That question is not raised by the assignment, and if it were, we could not consider it, as it was a pure question of fact upon which there was ample testimony in support of the wife’s title, and the jury found in her favor. The theory that because she borrowed the money with which to pay for the horse, it was a purchase upon credit and therefore the horse belonged to the husband, has no force, first, because the wife paid her own money for the horse, and, second, she did not get the money from her husband but borrowed it from a third person, who was examined as a witness and testified that he lent it to her. The validity of her note to that person has no place in this contest, but if it had, under the new married persons property act of 1887 we have affirmed the validity of the judgment of a married woman for borrowed money, and could -not well deny the validity of her promissory note given for the same purpose. The decisions upon this subject prior to the act of 1887 are not applicable now.

The fifth assignment is not pressed and has no merit.

The sixth assignment at first blush seems well taken. It would be error to reject proof of declarations of the wife against her own interest. But the question was not put in that way. It was: “ Q. State whether or not either of them, James Evans or his wife, told you since this execution was issubd, that this was James Evans’s horse and since this alleged sale of the horse to Benjamin Charles ? ” The record of the exception is thus: “ Objected to by plaintiffs’ counsel. Objection sustained. Question disallowed. Bill of exceptions signed, sealed and filed for defendant.” We are not informed what the objection was and if the question was improper for any reason it was not error to reject it as a whole: Sennett v. Johnson, 9 Pa. 335" court="Pa." date_filed="1848-10-06" href="https://app.midpage.ai/document/sennett-v-johnson-6228128?utm_source=webapp" opinion_id="6228128">9 Pa. 335; Wharton v. Douglass, 76 Pa. 273" court="Pa." date_filed="1874-10-05" href="https://app.midpage.ai/document/wharton-v-douglass-6234826?utm_source=webapp" opinion_id="6234826">76 Pa. 273. Now any declarations made by the husband against the wife’s interest were for that reason inadmissible : Martin v. Rutt, 127 Pa. 380" court="Pa." date_filed="1889-06-28" href="https://app.midpage.ai/document/martin-v-rutt-6239458?utm_source=webapp" opinion_id="6239458">127 Pa. 380. Therefore it would have been error to admit such declarations and the court was right in rejecting the offer as it was made as a whole. Immediately after the rejection of the offer the witness was asked if he had ever heard James Evans say, in the presence of his wife, after the sale to Charles, that it was his horse. This was objected to and admitted. The witness then did testify to such a declaration, but upon cross-examination, said the wife was not present and thereupon, on application of the plaintiff’s counsel, the answer of the witness was stricken out. This action of the court below was correct. If then the defendant wished to offer any declarations of the wife against her interest he should have done so, but he did not, and the question of the admission of such declarations did not come before the court at all and they cannot be convicted of error in that respect. It is fair to infer that had such an offer been made it would have been admitted, because the court did admit a declaration of the husband which was alleged to have been made in the presence of the wife simply because of that allegation. It was probably error to do so because of the incompetency of the husband to testify, or make any declaration against his wife’s interest, but that was error in favor of the defendant. But, however that may be, there was no distinct offer to prove declarations made by the wife against her own interest, and hence no such declarations were rejected and there was no error on that subject.

We do not think the charge is amenable to the criticism contained in the seventh assignment. The court said in a previous part of the charge : “ It is in evidence and not disputed, that this organ was bought by Walter G. Evans, the defendant here, and was paid for by him. It was his property. It is alleged, on the other side, that Walter, that is, the defendant here, gave that organ to his niece Gertrude. That question you are to decide. Did he do so? Does the evidence satisfy you that he did it ? ” etc.

The whole of the charge must be taken together when a charge of inadequacy or unfairness is made against it, and we think, considered in that way, it was a fair presentment of both sides. We see no error in the record.

Judgment affirmed.