Walker v. Walker

67 Pa. 185 | Pa. | 1871

The opinion of the court was delivered,

by Williams, J.

The deed from Andrew Walker and others to William Walker was properly received in evidence. It was admitted as an ancient deed, and the objection to its admission is, that no such accompanying possession was shown under it as would make it evidence without proof of its execution. Where possession is the only circumstance relied on, the rule undoubtedly is, that nothing less than proof of possession for thirty years, in conformity with the deed, is sufficient to raise the presumption of its authenticity. But is proof of actual possession under the deed indispensable 1 May not its absence be supplied by other satisfactory and corroborative evidence ? Whatever may be the leaning of the earlier determinations, it has never been expressly decided in Pennsylvania that nothing but proof of actual possession under the deed for thirty years is sufficient to raise a presumption in favor of its authenticity: Williams v. Hillegas, 5 Barr 492; and the weight of authority elsewhere is clearly against the establishment of so rigid a rule; and the prevailing doctrine now is, that where proof of possession cannot be had the deed may be read in evidence, if its genuineness is satisfactorily establisted by other circumstances: 1 Greenl. Ev. § 144, note 1; B Phil. Ev. 1310, note 903. In this case' proof of actual or exclusive possession under the deed for thirty years cannot be had. If genuine, it conveyed no present estate or immediate right of possession; and no actual or exclusive'possession could have been taken under it until the death of Margaret Walker in 1846, to whom a life estate was given by the will of Robert Walker. But if the defendant did not have the exclusive possession of the land, he had such possession of it for more than thirty years as the parties to the deed intended that he should have; and why should not this, in connection with the other corroborating circumstances in evidence, be sufficient to raise the presumption of its genuineness without express proof of its execution ? The deed required the defendant to remain with Robert Walker, who was living on the land and the owner of it, during his lifetime, and to take care of him and manage his estate in a proper manner. The evidence showed that he lived on the land from the date of the deed until the commencement of this action, a period of more than thirty-five years, that he remained on the land during the lifetime of his father and until the death of his mother, and that since then he has continued to reside there, making improvements and claiming the land as his own; that it was assessed in his name from 1835 to 1869, and the taxes paid by him during that time; and that Andrew Walker, who lived within two or three miles, did not set up any claim to the property until a short time before the commencement of -this action, when the land began to be considered valuable for its coal.- Besides all this, there was direct proof of the execution of the deed by Samuel Walker by the testimony of the subscribing witness to his signature, and of its execution by Elizabeth Walker and Ann Walker by the admission and testimony of the latter. There was nothing suspicious about the deed. It purported to be signed by all the parties named in it with the exception of William Gibson and Mary Gibson, and it was expressly proved that they refused to sign it. It was shown to have been in existence from the time it bears date, and to have been in the possession of the defendant — the party interested in its preservation and entitled to its custody — and there was nothing in the evidence tending to rebut or weaken the presumption arising from all these corroborating circumstances in favor of the genuineness of the deed, and of its execution by Andrew Walker. The proof given to establish its authenticity was therefore sufficient to allow it to go to the jury.

Nor was there any error in the answer of the court to the points embraced in the assignment. It does not follow that if Mary Gibson and Jane Sample, who were married women, did not so execute and acknowledge the deed as to make it binding on them, that it was not binding upon the other parties who executed it. There is nothing on the face of the deed showing that it was not intended to .operate or have any effect unless it was so executed by all the parties as to be valid and binding on all; and if the agreement contained in the deed was fairly made and fully performed by the defendant as the jury have found, it is binding on the other parties, whether Mary Gibson and Jane Sample are bound by it or not. Nor was the deed a legal fraud upon Robert Walker, if he did not actually agree or. consent to it. As it was made for his benefit, his consent, if necessary, will be presumed, and the law, instead of condemning such a contract as productive of public mischief and against sound public policy, should sanction and uphold it as not only lawful but praiseworthy. The jury were therefore rightly instructed that if the agreement recited in the deed was performed by the defendant, it was a valuable and sufficient consideration to support a conveyance in equity; and if it was fairly made without imposition and in good faith performed by the defendant, then the deed, though not a legal conveyance of the land, estops the plaintiffs from recovering in this action.

Judgment affirmed.