101 Pa. Super. 578 | Pa. Super. Ct. | 1931
Argued March 2, 1931. The plaintiff, Machnofsky, filed this bill in equity asking the court to cancel and set aside a deed purporting to have been executed and acknowledged by him conveying certain premises in Throop Borough to his wife — now deceased —, and to declare the same null and void as a forgery.
The defendants are the children of the deceased grantee, some by the plaintiff, and the others by a former husband. The deed, itself, could not be found or produced, but the record in the recorder's office showed that such a deed had been signed by him by mark, acknowledged, and delivered to his wife, dated February 19, 1908, and recorded the same day. The bill averred that the plaintiff had never executed, acknowledged or delivered the deed and that he knew nothing about it until shortly after his wife's death in January, 1930.
As the grantee, from whom the defendants derived their title, was dead the plaintiff was not a competent witness as to any matter occurring before her death: Act of May 23, 1887, P.L. 158, Sec. 5 (e). On the trial the court properly so ruled, and thereupon the plaintiff's counsel produced a quit-claim deed for the premises in favor of his daughter, Margaret Conicowski, dated the day of the hearing, and claimed that this was such a release or extinguishment of his interest as to render him a competent witness. The court reserved its ruling as to whether this rendered him a competent witness, and subsequently rejected his testimony on the ground that the circumstances showed that the quit-claim deed had been executed solely to render him competent to testify on the trial, *581
and therefore had not been made in good faith, within the meaning of section 6 of the Act of 1887. We think this ruling was in accord with the decisions of the Supreme Court in Darragh v. Stevenson,
By the quit-claim deed to Margaret Conicowski and the amendment of the suit, making her the use plaintiff, she also was rendered an incompetent witness as to anything occurring in the lifetime of the deceased grantee. So was her husband, Alex Conicowski: Bitner v. Boone,
The evidence of David Schwartz, as contained in the offer of proof on his recall (p. 46-a) should have been received. Communications made by the deceased grantee to her attorney in the presence of third persons are not privileged: Cridge's Est.,
In passing on the questions of fact involved in the case the court below adopted a wrong theory as to the degree of proof required. It apparently was under the impression that the evidence to establish the forgery must be clear, precise and indubitable, which is practically the equivalent of proof beyond a reasonable doubt: Ferguson Packing Co. v. Mihalic,
The 2d, 3d, 4th, 5th and 7th assignments of error are sustained. The rest require no discussion. The decree is reversed and the record is remitted for a retrial in accordance with the views expressed in this opinion. Costs on this appeal to be paid by the appellees.