129 Pa. 162 | Pa. | 1889
Opinion,
This is an action of ejectment, brougñt to recover about 26 acres of land, situate on the west side of the Schuylkill, opposite Point Breeze, in the Twenty-seventh ward of the city of Philadelphia. The description contained in the writ is not printed, but, according to the plaintiffs’ paper book, the disputed property is “ flat land,” bounded on the north by a line run upon the dike or artificial bank of the Schuylkill river, on the south by low-water mark, and on the east and west by the projection to low-water mark of the side lines of a ten acre meadow, or fast lands, of defendants, in front of which are the flats. These flats, being. between high- and low-water mark, are covered with water, except when the tides are low, and are valuable only as accretions may make them so for the .purpose of a wharf.' As the court below entered a nonsuit, we are bound to accept the testimony which was taken as true, treat the offers of evidence which were refused as if they were justified by the proof, and give to the plaintiffs the benefit of all the inferences which may fairly arise out of the facts thus assumed.
The common source of title was Aaron Palmer, to whom, on September 17, 1791, one Nathan Jones, by a deed, conveyed the meadow ground to which the flats were appurtenant. Aaron Palmer died November 11, 1817, and was seised of the properly at the time of his death; for it was admitted at the trial'that Aaron Palmer, or his heirs, claiming under him, was in the actual possession from the date of this deed until May 13, 1864, the date of the defendants’ deed from Lydia P. Palmer.
The plaintiffs’ claim is through a series of assignments from those entitled by devolution under the last will and testament of Aaron Palmer, deceased. The defendants claim under the deed' of May 13,1864, from persons entitled in the same right; and the whole question turns upon the proper force and effect of that deed. Did the conveyance from Lydia P. Palmer et al. to Hamilton Farrell for the fast lands pass the title to the flats also? The general rule, undoubtedly, is as we have stated it; but there are cases in which the intention of the parties may be otherwise, and it is a cardinal rule in all cases that a grant is to be construed according to that intention. “ The character of this kind of property is such that land bordering on the flats, and the flats, naturally go together. Their most beneficial enjoyment is derived from their connection; and it is inconceivable that any man, in his sober senses, having, or supposing he had, a title to both, would intentionally separate them, and convey the meadow to one of his children and the flats in front of it to another. For this reason it is that an express exception is required in the grant, or some unequivocal declaration, or certain immerporial usage, to limit the title of the owner in
It is apparent, therefore, that the question in each case is determinable upon the true and proper construction of the grant. When the bank of a navigable stream is called for as a boundary, — that and no more, — the law will presume the
Nor can we discover any good reason for excluding Lydia P. Palmer as a witness for the purpose stated. As the heir at law of Hannah Jones, she was originally entitled to the undivided one half of the property in dispute. She, with her husband, joined in the deed to Farrell, and, as the deed and the title to the lands in dispute, as affected thereby, constitute the thing or contract in action, she may well be said to have been a party thereto. The true force and effect of this deed is the “ subject in controversy,” and to that deed she was a party. It is equally true that the other grantors in the deed are dead, and their right thereto or therein has passed by their own act, or the act of the law, to the party on record who represents their interest. The witness was wholly without interest. She had, by a deed of conveyance, disposed of her entire right, and entered into no covenants against any outstanding title. She might ultimately, perhaps, be liable for part of the costs, but this, by § 4 of the act of 1887, was not ground for her incompetency. This, in view of the recognized policy of the statute to exclude the surviving party to the transaction, whether interested or not, is perhaps unimportant; but there are other considerations upon which the competency of the witness is to be determined. She was called, not against the interest of the parties deceased, but in support of that interest; and Farrell, the adverse party, was alive, and competent to testify upon the same matters. If the witness is within the provision of clause (<?) at all, she comes clearly within the exception to that clause: “ unless the proceeding is by or against the surviving or remaining partners, joint promisors, or joint promisees of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors, or joint
The judgment is reversed, and a venire facias de novo is awarded.