162 Pa. 510 | Pa. | 1894
Opinion by
This action was brought in 1888 to recover the equal undivided one half of the tract of land known as the Clingan farm. The plaintiff holds the legal title to the one half as tenant in common with his father under a deed made to them in 1856. The defendants set up a variety of circumstances, including a family settlement made in the presence of John L. Lewis, the father, during his last sickness in 1869, as an equitable defence to the action. The case was first tried in 1891 and a verdict was rendered in favor of the plaintiff under the directions of the learned trial judge. The reason for this instruction was the conclusion of the learned judge that the facts relied on as constituting a defence had been considered and finally disposed of adversely to the defendants in a proceeding in equity to compel specific execution. The judgment entered on the verdict was brought into this court by appeal and was reversed, and a venire facias de novo awarded: Lewis v. Baker, 151 Pa. 529. A new trial has taken place, and a verdict has again been rendered in favor of the plaintiff under a binding instruction from the learned trial judge that the facts set up by the defendants were not sufficient “ as a matter of law to prevent the plaintiff from recovering.”
The single question raised by this appeal is whether the testimony should have been allowed to go to the juiy. Looking over it as it appears in the paper-books we learn that this farm was bought by John L. Lewis, the father, in 1856, and paid for by him. The deed was made at his direction to himself and his son Thomas as tenants in common, and probably with a view to the final division of his property among his children. In 1861 he bought an adjoining farm known as the Kelly farm,
The testimony of Levi Bechor did not justify the withdrawal of this case from the jury. His testimony was not conclusive upon the defendants, certainly not as to the questions upon which there was other testimony. His credibility was for the jury, and a party cannot ordinarily be bound by the unlookedfor statements of a witness who shows himself to be hostile to the party calling him.
The judgment is reversed upon the first, second, and third assignments of error.