Bowser v. Cravener

The opinion of the court was delivered, January 7th 1868, by Thompson, C. J. The article of agreement of Samuel Bowser, deceased, the ancestor of the plaintiffs in error, with David Flanner, dated September 7th 1816, was, it must be admitted, a very informal instrument; but it was a contract for the sale of one-half the tract on which the vendor then resided, including his settlement, and it was signed by him. The possession was taken by Flanner pursuant to this contract, and the tract divided between the parties, Flanner to have that portion of it south of Slate Lick run, and Bowser all north of it. About this there appears never to have been any difficulty between the parties or those claiming under them.1 This informal article contains no stipulation in regard to the purchase-money which Flanner was to pay, and the court was asked to charge the jury in the defendant’s 1st point, that it was void for that reason; which was equivalent to an assertion that the consideration might not he shown by parol. This the learned judge refused to do. It would have been serious error if he had not so refused. The written contract sets forth a sale, and to prove what the consideration was, did not contradict, but accorded with its terms: 1 Penna. R. 486; 3 Wright 351; 7 W. & S. 394; 12 Wright 491. It is true, in most of these cases, the proof offered was to show other and additional considerations to those expressed in the deeds, hut that does not change the principle. Here there was a sale, hut no consideration mentioned. It did not contradict the agreement to show that there was a consideration. There was testimony on the subject of the consideration which was properly left to the jury on the point. That portion of the answer to the defendant’s 1st point which instructed the jury, “ that if Flanner had entered and made — 140 — valuable improvements upon the faith of the contract, he would have an interest that could be enforced,” is complained of. When this case was here before (Cravener v. Bowser, 4 Barr 259), on this very point the court said, “ by the article of agreement already referred to, between Bowser and Elanner, the latter acquired an estate in the land. He entered in pursuance of the article, and made improvements, and held it sixteen or seventeen years. This estate he could not divest or alienate without a contract in writing, unless the transaction was within the saving of some of the exceptions of the statute; that, however, is not pretended.” The court could not well have charged other than it did under these expressed views of the effect of improvements. And certainly it would be difficult to show wherein the principle announced was an error, in view of the fact, that the entry and improvements were made under a contract of sale. To suppose that by valuable improvements a party acquires no equity, is contradicted by every day’s experience, as well as by the cases. They often amount to more than the original purchase-money, before the purchase-money is paid, and are such an interest in land as to be the subject of liens and sale on execution. Such an interest or equity would require to be conveyed by writing, or sold and delivered in such way as to take it out of the operation of the Statute of Frauds and Perjuries. Numerous cases show this. We see no error, therefore, in any part of the answer of the court to the defendant’s 1st point. 2. There was no error on the part of the court in refusing to charge in answer to the defendant’s 2d point, that because the contract between Bowser and Cravener was executory, therefore it might be rescinded by parol. To hold such doctrine in a case where there had been valuable improvements made, under a long-continued possession, would not only be to hold that valuable interests in real estate might be transferred without writing, in defiance of the statute, but it would be to sanction a method by which creditors would be sure to be defrauded who had trusted to the fruits of their debtors’ labor invested in the soil he was improving and enhancing in value. Such is not the law: 4 Barr 259, supra. The balance of the answer to the point was just what it should have been in order to be consistent with the negation of the portion alluded to. The declarations of Flanner about changing the nature of his possession, from that of a purchaser to that of a tenant, were certainly insufficient for any such purpose as they were offered for. Indeed, any mere declaration would fail altogether to have that effect. 3. We have anticipated all that is necessary to be said in answer to the 3d assignment of error. If it were true that Flanner entered under the article of agreement referred to, he — 141 — entered as a purchaser, and if he resided thereon for a number of years, and made valuable improvements on the land — valuable in reference to the times and circumstances of the country — his declarations that he would throw up his article, and thereafter hold as tenant to his vendor, could not have the effect of creating that relation, and are to be regarded as mere declarations, insufficient to divest his interest, his possession continuing after as before. Enough has been said on this point alone, to render unnecessary anything more special, excepting it might be to say, that the authorities cited on the point for the plaintiffs in error, in order to produce a reversal, viz. Lauer v. Lee, 6 Wright 165, Boyce v. McCulloch, 3 W. & S. 429, and Goucher v. Martin, 9 Watts 106, are very decidedly against the position assumed. The farthest they or either of them go, is to the extent of holding, that as between vendor and vendee there may be such a rescission by parol, accompanied by such acts in execution of it as would estop the vendee from claiming specific performance of the contract afterwards. There were no acts in execution of any alleged rescission shown or attempted to be shown in this case, and of course it is not within the principle. If these cases are authority for this principle, they go no further in the direction claimed by plaintiffs in error. 4. We see nothing of which the plaintiffs in error can justly complain in the answer of the court to their point on the subject of the Statute of Limitations. It was substantially affirmed — we need not dwell on it further. 5. The next error to be noticed is the exception to the admission of the power of attorney of the heirs of Bichard Freeman, deceased, of the county and town of Carlo, Ireland, to James Stewart, agent, to sell and convey their interest in the tract of land of which that in dispute is part. It was a depreciation tract; a name or designation for certain lands north and west of the Allegheny and Ohio rivers, subject to be taken up and paid for in what was called by the Act of the 11th of December 1780 “ depreciation certificates,” which certificates grew out of the scale of depreciation, by which Continental money was estimated in gold, and which had been paid to officers and soldiers of the Pennsylvania line in the Bevolution. Bichard Freeman, the alleged kinsman of the appointors in the power of attorney, was the owner of a tract of land granted upon these depreciation certificates, the tract now partially in dispute. The objection to the power of attorney was that it was not sufficiently acknowledged to admit of being recorded under our recording acts; and secondly, because the recitals in it were not evidence of heirship. The instrument was in sufficient form, and it was acknowledged before E. Butler, who subscribed himself “ E. Butler, Sovereign — 142 — of Carlo, Ireland,” and was attested by the seal of the town. His certificate sets forth his official character to be a “ magistrate in the chief office of said town of Carlo, in the county of Carlo, Ireland.” This certificate brings the acknowledgment within the provisions of the 2d section of the Act of 1705, 1 Sm. L. 69, and the decisions upon it. Tilghman, C. J., in Blythe v. Richards, 10 S. & R. 265, said: “ So powers of attorney executed beyond sea for the sale of lands in Pennsylvania, have been held good, on proof of their having been acknowledged before the mayor of a city, although our Act of Assembly of 1705 requires proof by the oaths or affirmations of two or more of the witnesses.” And see 1 Pet. C. C. 433. The 4th section of the Act of 28th May 1715 extended this authority to the mayor, chief magistrate or officer, of the cities, towns or places where such conveyances are made. The Act of 3d of April 1840 dispenses with the proof of the seal, where the acknowledgment of the instrument is according to the existing laws of the commonwealth, although the official seal must be attached. We think, therefore, from this history of what was done, the execution was sufficient to entitle the power of attorney to be recorded, and consequently it was evidence. The next question is, were the recitals in it evidence of -heir-ship, or any.evidence of it? In this state a deed is regarded as an ancient deed after thirty years, and in some circumstances proves itself. Certainly it does so where there is possession under it. That was the case in regard to a portion of the tract out of which this controversy has arisen, and for the other part a portion of the time at least. It was on record and the foundation of the claim of Anthony Cravener from 1831, and continued so up to the trial of the case. But that is not a point of importance just now. It was an.ancient deed — a power of attorney of record for upwards of thirty years. Was it evidence of pedigree ? In Paxton v. Price, 1 Yeates 500, it was held that “ recitals in a conveyance are evidence of pedigree ; the' rules in general being much relaxed in this particular.” So, in Little v. Pallister, 4 Greene (N. J. Rep.) 209, it is said: “ recitals in ancient deeds are good presumptive evidence of pedigree, when an adverse title by inheritance has been set up under the same ancestor, even though the land conveyed by the deed is itself the subject of controversy.” This is undoubtedly a reasonable rule in a case where the adverse claim, as in this case, ignores both the title and the heirship. It cannot matter much to the plaintiffs in error who the heirs are, for they deny their title altogether. We think this objection was not sound and that the power of attorney ivas properly evidence against both objections. It is unnecessary to consider'what effect the Act of the 14th March 1850, confirming sales under powers of attorney defectively exe — 143 — cutecl, would have had, if any, in ease the first objection to the former had prevailed, and we express no opinion on it. The next assignment of error is to the admission in evidence of the deposition of the Hon. Joseph Buffington. We will not notice the objection urged in argument, but not made in the court below, that the “ witness was in good health and resided in the county.” If the fact be as stated by the counsel for the defendants in error, that at the time of trial he was absent in another county holding court, professional obligation, if not ordinary candor, it seems to us, ought to have dictated the propriety of stating this fact in connection with the objection, instead of leaving it to be inferred that the witness was in the very town where the trial was being had, and at the time it was going on. But the objection to the matter of the deposition’is more serious. It has appended to it and proved by the witness, an unsworn ex parte statement of David Flanner, signed by him on the 29th October 1846, in presence of the witness and drawn up by him. This statement of what took place between the narrator and David S. Bowser and Daniel Slagle, a son-in-law of Samuel Bowser, two of the defendants below, was to show fraud in these parties in procuring a transfer by Elanner of his interest to Samuel Bowser, in the land which he had formerly purchased from Bowser. These declarations had no relation to boundaries or the nature of Elanner’s possession, but referred exclusively to what took place when a transfer was made to Bowser, through, as Elanner alleged, a fraud upon him. Such testimony was utterly incompetent. It was hearsay of the most objectionable kind, and should never have been offered. It is true that it is alleged that the fraudulent paper was given in evidence, although we see no trace of it in the testimony. This, however, is not wonderful, for the plaintiffs in error have only given what testimony suited them, and the defendants in error say they had not control of the paper. But whether it was in evidence or not, it could not be attacked by the declarations of the party whose interest it was to get rid of it. Elanner was in full life, and his deposition was taken in the case, proving substantially the same facts contained in his declarations, as found in the testimony of Judge Buffington, — hence the more strange the offer. We cannot say the testimony was irrelevant and merely harmless. A charge of fraud such as it contained would, in a case in which there were any facts for the jury, be likely to be damaging. It is possible it did no harm, but it is very probable it did. This assignment of error, we think, is sustained and on account of it the judgment must be reversed and a new trial ordered. The last assignment of error is to the admission of the deposition of William Noble. It had been taken during the pendency — 144 — 'of the former suit between the parties under whom the present litigants claim. The objection to its reception was that notice of the time and place of taking it was not proved. Also because not identified as the deposition then taken, and because not shown that the matter in dispute was the same as in the present controversy. The court overruled the objections and admitted the testimony. The court were satisfied that the matter in controversy was the same when the deposition was taken as now. There is such a paucity of evidence on this point before us, we cannot say whether this was right or not — but I incline to think that that was made sufficiently apparent. The proof of notice of the taking the deposition, the witness being dead who served the notice, was attempted to be supplied by proof at bar, of what he _ had testified about the service of notice on offering the deposition on the former trial. The notes of counsel were resorted to and proved, and from them it very clearly appeared that notice had been served and a deposition of William Noble read on this trial. If that was the same deposition now offered we think it was admissible. We should presume that the court were satisfied that the notice proved was sufficient under their rule on the subject of taking depositions. But it is not so clear that the deposition offered on the trial below was identical with that read on the former trial. It was incumbent on the plaintiff below to have cleared up that point if possible. We cannot say he did, and it is not necessary to say he did not, as the case goes back for another trial for other reasons than those alleged against this testimony, and it is not likely such a presentation of the testimony on this point can, or will, be allowed again to take place. Suffice it, that identification on a new trial will be as indispensable as the other requisites, to entitle the deposition to admission. For the reasons given on the preceding exception the Judgment is reversed, and venire de novo is awarded.