Kifer v. Brenneman

| Pa. | Sep 15, 1845

The opinion of the court was delivered by

Rogers, J.

This is'an action of ejectment to avoid the sale of land sold by an administrator under an order of 'the Orphans’ Court, on the allegation that the administrator was a copartner with the purchaser at the sale. The administrator was offered as a witness to prove the fact, and was objected to because his testimony contradicted his return, and the deed he had made to the purchaser. But the court properly held, that proving fraudulent conduct at the time of the sale is not contradicting the record; and they might have added, on the authority of Baring v. Shippen, 2 Binney, 165, and other cases, that a grantor is permitted to impeach his own deed.' The ejectment is brought by all the heirs, with the exception'of the witness, who was one of them ; but his evidence is not exceptionable for that reason, as it is ruled in Bennett v. Hethington, 16 Serg. & Rawle, 193, that a tenant in common is a competent witness in an action brought by his co-tenant. Exception is made to the witness on another ground not taken at the trial, viz.: that the purchase money received by the administrator has not been paid over, and if the verdict is in favour of the heirs, it will be retained by him ; thus swearing, as is urged, money into his own pocket. Now, it must be observed, that this point does not arise, as it nowhere appears, in the evidence reported tp us, in whose hands the money now is; whether retained by the administrator, paid over, or unpaid. But suppose it not to be paid over, and still in the hands of the administrator, it is a contingent advantage which may affect his credit but not his competency. ' The witness has no direct interest in the event of the suit, nor can I see how the verdict and judgment could be given in evidence in any suit to which he may hereafter be a party. .

Judgment affirmed.