8 Watts 380 | Pa. | 1839
The opinion of the Court was delivered by
The tract of land, including the part for which the ejectment is brought, was surveyed in the name of John Brady. The plaintiff opened the case by stating that both parties claimed under John Cheny, and that by several mesne conveyances, the title was vested in the plaintiff. The fact that they claimed under
• But little weight is to be attached to the objection that the plaintiff' had himself shown the title out of Cheny. That the title was in Campbell appeared no otherwise than in the recital in the deed from Houtz to M’Carty, but that deed was given in evidence for the special purpose of proving that both parties claimed under the same person, to supersede the necessity of entering into proof of the original title. There is nothing in this to estop him from showing the truth. The recitals are but evidence of a fact which may be rebutted; and even if the deed itself, from Cheny to Campbell, had been given in evidence, it is competent for the plaintiff to show that, although an absolute conveyance on its face, it was either fraudulent, or that it was given for the special purpose of enabling Campbell to take out a patent, with an agreement that he would reconvey .a part to the vendor; that in fact Campbell was, as to that part, but a trustee for Deck. If a written agreement for a reconveyance had accompanied the deed, the position would not admit of argument, but if it may be shown by parol, as the court have decided,
But it is said that the article was properly registered, because no title was shown in Cheny, or subsequently in Deck. In relation to this doctrine, the law has undergone some change. In M’Dill’s Lessee v. M’Dill, 1 Dal. it is decided that a deed may be given in evidence, whether pertinent or not; but this, in its utmost latitude, was repudiated in Faulkner’s Lessee v. Eddy, 1 Binn. 190, and in subsequent cases, 10 Serg. & Rawle 9. Before a deed can be received in evidence, it is necessary to show title in the grantor, but this need not be a perfect title, for any evidence of title, however small, is sufficient. Nor does the rule apply in the same extent to a deed containing an executory contract between the parties for the future procurement and conveyance of title to land. Cheny v. Parker, 3 Rawle 283. The objection is that there was no proof of title in Cheny. The suit is brought to recover part of the tract surveyed in the name of John Brady, supposed to contain about fifty acres, and designated by the name of the mill-stone tract. The plaintiff'alleged that the whole of the John Brady survey belonged to Cheny, that being unable to patent the land himself, and also to diminish the expense of obtaining a patent, it was agreed that the whole tract, including the land in dispute, should be conveyed to Campbell. That Campbell was to be at the expense of obtaining a patent for the whole tract, and that in consideration of the transfer, Campbell was to convey by deed, to Cheny, the mill-stone tract, containing fifty acres or thereabouts. He further alleged that the agreement was in writing, but that the agreement has been lost or mislaid; that the deed was never recorded, nor was it delivered, except for the purchases as above stated. For the purpose of showing the real nature of the transaction, he was permitted, and has given the parol testimony. The plaintiff has endeavoured to prove that Cheny, after the deed to Campbell, retained the possession of the mill-stone tract, and that in full view, and with the knowledge and consent of Campbell, he used the locus in quo as his own property; that he was a mason, and that he was in the constant habit of taking mill-stone, without stint or question, from the tract, up to the time that he sold to Deck, and that his son did the same after his death. If the witnesses are worthy of belief, (a matter wholly for the decision of the jury,) there is some proof of these facts which, it cannot be denied, have a direct bearing on the title, and certainly gives some plausibility, to say the least of it, to the allegation that there was an agreement or understanding between Cheny and Campbell as to the mill-stone tract, which continued in the possession of Cheny after the date of the deed to Campbell. And the suggestion derives some weight from the fact that such arrangements were not uncommon, as it tended to lessen the expense of obtaining a patent, an object not to be totally disregarded; and also because the part retained was more useful to Cheny, as it was
Judgment reversed, and venire de novo awarded.