Swank v. Phillips
6 A. 450
Pa.
1886
Check Treatment
Mr. Justice Trunkey

delivered the opinion of the Court,

That it was error to exclude the record of the agreement is too plain for question. It was legal evidеnce under the Act of February 21st, 1834, P. L., 68 ; Curry v. Raymond, 28 Pa. St., 144. But its rejection is not cause for reversal, for after-wards the оriginal agreement ‍​‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‍was offered by the plaintiff, and admitted; otherwise the first assignment would have to be sustained.

Whеn the plaintiff had the agreement recorded, the defendants were already in possession, and this aсtion was pending. At the trial he did not claim to recover because his agreement was recorded — hе claimed to be an innocent purchaser without notice. Nor is there anything in the statutes relative to recording of deeds to aid him. If he had notice of the outstanding title, it bax-s his recovex-y as effectually as if it hаd been recorded.

The defendants’ fourth point, namely; “ That the plaintiff claiming ‍​‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‍the land under an unrecordеd conveyance, cannot re*489cover the land in dispute from the defendants, who are in possessiоn of the land, claiming under a prior unrecorded conveyance from the same grantor,” should have bеen unqualifiedly refused. Its mere refusal could not have been misunderstood. The answer was very nearly the substanсe of the defendants’ fifth point, and also of the answer to that point, and also of what the Court had said respecting notice in the charge. It is but fair to the parties when one puts a well constructed and definitе point, that it be either affirmed or denied. To do neither in express terms, and take occasion to rеpeat the substance of another point by the same party, is likely to be unsatisfactory to the other, if not ground for a reversal. Though a lawyer would understand the point was refused because it was not affirmed, it is uncertain whether the jury would so understand.

The defendants are two of the children of Jonathan Phillips, deceаsed, and claim under him as heirs. Against the plaintiff's objection, the widow and a son of said decedent were permitted to testify respecting matters which ‍​‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‍occurred in the lifetime of said Phillips. The Court gave no reason for so permitting the widow to testify, but remarked that the son would hot he excluded, inasmuch as the plaintiff had testified to such matters.

In Morris v. Travis, 7 S. & R., 220, an action arising from a dispute about lines, the defendant was allowed to show the extеnt of his improvements on the land he had in possession, and this Court held it was competent for him to do so, if for nо other reason, than to rebut the evidence the plaintiff had given on the same subject. That is the solo аuthority cited to support the ruling, that when an incompetent witness has testified on one side, no matter whethеr with or without objection, an incompetent witness must be admitted, if offered by the other side, to testify on the same matter. And we think the ease lias no application to the ruling. Had .objection been made to Swank аnd error committed in permitting him to testify, that error could not be corrected by committing another.

Was the brother of the defendants interested? If so, it is not pretended that the statute qualifies him. One of several tenants in common, in whom an outstanding title is alleged to exist, is not a competent witness for the defendant alleging his title. In suсh case the witness ‍​‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‍comes to maintain bis own title, and to keep those in possession who recognizе it. If the defendants succeed, the title of the witness is found by the verdict, and he can call on the defendants tо attorn to him, or commence an action to recover possession : Lodge v. Patterson, 8 Watts, 74. A tenant in commоn is a competent witness for his co-tenant in an ejectment brought by the latter— *490in that case the co-tеnant is interested in the question, ‍​‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‍not in the event of the suit: Bennett v. Hethrington, 16 S. & E., 193. It was there said “ that a tenant in common is not cоmpetent to support the possession of his co-tenant when the latter is defendant in an ejectment, founded on a title adverse to the title of both.” And the reasons were pointed out why a co-tenant is competent to testify when called by the plaintiff in an ejectment, and cannot be a witness for the defеndant in an ejectment for the land.

Not only was the brother of the defendants, he being their co-tenant, incоmpetent, but so also was their mother. The moment their title is established, her right to the widow’s interest under the intestatе laws is established. Her interest in the event of the suit is certain. The sixth, ninth and tenth assignments of error are sustained.

In tbe Cоurt below no point was made that the evidence was insufficient to warrant the jury in finding that the plaintiff, prior to his purchase, had notice of the title of Jonathan Phillips. On the contrary, the plaintiff’s points indicate that he believed the evidence was sufficient to submit, for he prayed instruction that the plaintiff was entitled to reсover if the jury found that he purchased in good faith, without notice of the title which the defendants claimed. Unless there was evidence of notice there was no question about it for the jury. At present nothing will be said of thе sufficiency of the evidence. It may not be precisely the same at the next trial. Then, it may appеar whether Griffith Phillips is a near relative of the children of Jonathan Phillips, or a stranger. At the argument it was not' сontended the instructions on the question of notice were erroneous, in case there was evidence to submit.

No error is in the rulings, complained of in the second, fourth, seventh and eighth assignments, and there is no occasion to note them specially. Judgment reversed, and venire faeias de novo awarded.