48 Pa. Super. 553 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff’s abstract of title, which was set forth in her declaration and sustained by the evidence on the trial, may be briefly stated as follows: November 26,1858, deed, Phila. Homestead Assn, to Mary A. Cahill; April 2, 1886, deed, James J. Gillen and Mary A., his wife, formerly Mary A. Cahill, to Arthur M. Wood; January 25, 1890, deed, Arthur M. Wood and wife to William Hutchinson and Alice, his wife (alleged in the abstract and conceded by defendants to be by entireties); March 2, 1900, death of William Hutchinson; March 23, 1900, deed, Alice Hutchinson to Agnes G. Tucker. All of these deeds were duly recorded. The defendants pleaded not guilty, but filed no abstract of title. Therefore, under the act of 1901 and the rule of court, she could give no evidence. The evidence introduced by the plaintiff as to the possession was that Alice Hutchinson, the plaintiff’s immediate pred
The plaintiff’s abstract did not show title out of the commonwealth, and did not show that any of the persons under whom the plaintiff claims were ever at any time in possession of the land, or that the defendants claim under the same title as the plaintiff, or that their titles have a common source, and it is argued, upon the authority of Lehman v. Howley, 95 Pa. 295, that the abstract did not present a full prima facie case. But, as the omission to aver the possession of Alice Hutchinson under her deed might have' been supplied by amendment, and as the admission of the evidence upon that subject was not excepted to and is not assigned for error, the case does not come up for decision on the pleadings alone, as did the case of Lehman v. Howley, but on the pleadings and proof. Thus viewing the case, the question is, whether proof of title out of the commonwealth was absolutely essential to the plaintiff’s recovery against defendants who refused to file an answer, in the nature of a special plea, setting forth their grounds of defense, with an abstract of title by which they claimed, as required by the Act of May 8,1901, P. L. 142, and who, for aught that appears in evidence, were in possession without title or color of title. As the plaintiff did not prove thirty years’ continuous possession of her predecessors in title, she was not relieved by sec. 6 of the Act of April 27, 1855, P. L. 368, from proving title out of the commonwealth. But that statute does not express the only ground upon which such proof may be omitted.
As to the assignments alleging error in the admission of the deeds recited in the plaintiff’s abstract of title, it is enough to say that the evidence was rendered competent by the subsequent evidence as to the possession of Alice Hutchinson, the plaintiff’s immediate predecessor in title. The general rule is, that the admission of irrelevant evidence is not ground for reversal where it is afterwards rendered competent by the introduction of other evidence: Laird v. Campbell, 100 Pa. 159; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619. We see no satisfactory reason why the rule should not be applied here.
The plaintiff called Ellen McMenamin, the wife of the other defendant, as for cross-examination, and elicited from her the fact that she and her husband went to live in the premises about nine years before the date of the trial, which was in May, 1911; that Alice Hutchinson was living there at that time; and that they continued to occupy the property after her death. This testimony was admitted without objection, but when the plaintiff sought
The remaining question is, whether binding direction in favor of the plaintiff was justified. It results, from what we have said, that it would have been if the fact that Alice Hutchinson’s possession extended back to the date of her deed to the plaintiff had been admitted or conclusively established. Evidence was given from which the fact could be found by a jury, and it was not contradicted. Conclusive effect ought not to be given to the defendants’ failure to contradict it, for it did not relate to a matter of which they may be legally presumed to know the truth, and, as already noticed, the fact of her possession was not averred in the plaintiff’s abstract. The evidence was oral, and the credence to be given to it depended on the accuracy of recollection and veracity of the witness, which matters it is ordinarily the province of the jury to determine. The lack of precision on the part of the witness in stating the length of the possession, is a matter to be noticed in judging of the accuracy of his recollection. Upon the whole, we conclude that the case is not an exception to the general rule, that when proof of a fact depends upon oral testimony it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court
Judgment reversed and venire facias de novo awarded.