| Pa. | Jul 15, 1840
The opinion of the court was delivered by
The defendant below, plaintiff in error, has assigned several errors in respect to the evidence on the trial, and in the charge of the court.
1. The first bill of exceptions is to the admission of the agreement, dated the 7th January 1833, by which the defendant, in consideration of a transfer to him from his two brothers, John and Richard, of their interest in their father’s estate, agreed, that the defendant should elect to take the tract No. 2, now in question, and hold it as the common estate of the three parties, subject to certain charges to which it might become liable. The plaintiff in this ejectment claimed the one-third thus acquired by John Inman, as purchaser of it at sheriff’s sale. The agreement was material, and it would seem indispensable to the plaintiff’s recovery. No reason has been given why the evidence was not admissible.
2. The evidence of Coudrey, stating declarations made by John Inman, that he had an interest in the property, was admitted by the court, after objection by the defendant. The defendant alleges that the declarations of John, in his absence, were not evidence against him. From want of precision in the offer of this testimony, and in the testimony itself, a doubt has been suggested, as to the time when these declarations occurred. If it was in the year 1833, as that was previous to the receipt by John to Caleb, of the 4th April 1S34, they would merely go to show that John still claimed an interest-in the tract, and would be of little importance to either side. But it seems to be considered by the defendant as having been used by the plaintiff as a conversation occurring in the year 1834, and as evincing the receipt to have been covinous and fraudulent. Taking the evidence, however, as we have it on the record, it seems not properly applicable to the year 1834. The time mentioned by Judge Scott, is the year 1833, and to that time the witness referred. Miller’s testimony, when he was subsequently examined, tends to the same conclusion.
3. The defendant offered the receipt of the other brother, Richard Inman, for 227 dollars, dated the 23d September 1836. We think this was properly rejected, being long after the transaction in dispute between the parties, and res inter alios acta. Besides, a mere receipt, though the handwriting of the subscriber be proved, is not the best evidence of payment, and, therefore, not competent evidence to prove it.
The remaining errors assigned are to the answers of the court below, to certain points proposed by the defendant. >
1 and 2. The contract between Caleb and John was, that John was to be interested in one-third of the tract, he paying his proportion of the recognizance to be given by Caleb to secure the pay
3. The levy was on “a'tract or'pdrcel'bf land, situate 'in the ¡township of Hanover, Luzerne county, and state of Pennsylvania, bow in'the hands and possession of Caleb Inman, and being the heirship of John Inman, in the estate of Richard I'nnian.” The sheriff’s deed corresponds with the levy. The site of the land, though not certain, may have been made so, by the proof given of its being in the possession of Caleb, as well as by reference to it as the heirship of John. The levy on the tract generally, would embrace whatever interest John might hold in it, unless there were something else in the levy restricting it'to a particular part or share of the land. As in M’Cormick v. Harvey, 9 Watts 482, decided at Harrisburg last term, where a levy was on a tract, being the moiety -of the defendant therein: it was held, that the generality of the levy, should be restrained by the express words following, to a ■moiety only. Then the question arises here, whether the words, “ being the heirship of John Inman in the estate of Richard In-man,” do qualify the levy. For .the actual share which John inherited from his father Richard, was but one-eleventh, there being eleven children or their representatives. This share John released to Caleb, by deed of the 7th January 1833, contracting with Caleb by an agreement of the same date, that he should be tenant in common with Caleb and Richard, of tract No. 2, if Caleb elected to take it; So that strictly speaking, it was a purchase of one-third of tract No. 2, by John. Still it is a fight which originated in his interest in that tract as heir, and is a sort of commutation for it. In levies more laxity of description is allowed than in deeds and conveyances, because the defendant’s title is not always accessible to the plaintiff, but may depend, as here, on secret documents and articles, the production of which can only be enforced on trial of a suit. In Palmer’s case, 4 Coke 74, it is laid down that if the sheriff sell all the interest that the defendant has in the land, it is good enough, notwithstanding a misrecital; for by common intendment the sheriff cannot have precise knowledge. We think it is sufficient if the terms used show what was intended to be levied on; and where doubtful expressions are employed, the construction should be favourable to the plaintiff, to enable him to obtain pay
Sixth, seventh, eighth and ninth errors. The remaining errors relate to the merits of the case. The plaintiff alleged the release by John to Caleb, to have been a fraudulent act — not merely a legal fraud, such as a voluntary conveyance has, in some cases, been considered as against creditors — but a contrivance between the brothers to defeat the creditors of John. This was matter of fact for the jury on the evidence, and was so left to them by the court. If there was any evidence at all on the subject, it is not for us, sitting as a court of error, to say whether it was sufficient. If there had been no evidence at all, our duty would be to reverse the judgment. But we cannot say that was the case here: on the contrary, there were circumstances in the case from which the jury might infer fraud, and if the whole case, taken together, was not sufficient for that purpose, the remedy was by application to the court below for a new trial.
Judgment affirmed.