Peiffer v. Lytle

The opinion of the court was delivered, July 2d 1868, by Read, J. The merits of this case are contained in a point [391] presented to the court by the defendant, and upon which it was requested to charge the jury. The point is in these words: “ The court are respectfully asked on behalf of the defendant to charge the jury that if they believe the testimony of Samuel Kohr, that his father-in-law, Christian Landis, purchased a property in East Hempfield township for '$1400; that he paid for the same, and had the deed therefor made in the name of his son-in-law, Samuel Kohr, as an advancement for his daughter, Maria Kohr, the wife of the said Samuel Kohr, and to be held by him in trust for his said wife; that the said Maria Kohr afterwards joined with her said husband in conveying the said property for the sum of $2800, and he received the proceeds thereof, promising to secure the same to her by putting it into his property in Mount Joy; and that he also received from her in the year 1856 $1633 of her own money, which she had got from the estate of her father and mother, on his similar promise to the same effect; then these sums constitute a valid consideration for the deed of conveyance of Samuel Kohr and wife to Abraham B. Landis in trust for her, and the subsequent conveyance of Landis to her, vested in her a full and sufficient title to the property independently of her husband’s creditors ; which title having been conveyed to the defendant, the verdict must be for the defendant.” This point was distinctly affirmed by the court, and the jury found the facts to be as stated, by the verdict. The title under which the plaintiff claimed originated subsequent to these conveyances vesting the legal and equitable title to the property in Mrs. Kohr, and of course failed, as her husband had no title or claim whatever to it, either at the time the plaintiff obtained his judgment or at the period of the sheriff’s sale. IVe find no error in the answers of the court to the plaintiff’s points, nor in the lucid charge of the learned judge, to which we refer for a full explanation of the case. These remarks cover the whole case except the exceptions taken upon the trial to the rulings of the court. The objection to Samuel Kohr, upon whose testimony the case of the defendant depended, was presented in various forms upon being called as a witness; having been released by the defendant, he was objected to by plaintiff because he is liable over to Jacob Kohr in a certain event on the bond of indemnity given by Jacob Kohr to S. S. P. Lytle; bond of indemnity dated April 4th 1863 (and in evidence). The witness was allowed to be sworn, and in this we see no error, as there was no connection proved between the witness and the bond. Then the plaintiff asked the witness to be examined on his voir dire, which was objected to by defendants, and the court disallowed the request, because the bond of indemnity was used by the plaintiff for the purpose of showing that the witness was liable [392] over to Jacob Kohr on that bond, which they think was using testimony aliunde to prove him interested. In this the court only followed the rulings of this court in Mifflin v. Bingham, 1 Dallas 275, per McKean, C. J.; Gordon v. Bowers, 4 Harris 230, per Rogers, J.; Anderson v. Young, Exec., 9 Harris 447, per Lewis, J., delivering the opinion of the court. The plaintiff in his cross-examination of Kohr does not appear to have put any questions to him relative to his interest growing out of his supposed connection with the indemnity-bond given by his brother, but to have relied on his exception to the ruling of the court. The next is to the testimony given by Kohr in ■ relation “ to conversations and agreements between himself and his wife during the existence of the married relation.” The exception was taken to the offer by the defendant to prove by the witness the facts stated in it. The offer was to prove an advancement by his father-in-law to his daughter, the wife of the witness, he at the same time promising to hold it for her; that in the sjoring of 1857 he and his wife conveyed this property for $2800 ; that this conveyance was made with the consent of Mrs. Kohr upon the witness promising to hold for her and secure the amount of the purchase-money; that in 1856 Mrs. Kohr received from the estate of her then deceased father over $1100, and that her mother gave her as an advancement over $500, both of which sums she also placed in the hands of her husband, Samuel Kohr, upon the promise to secure and repay her; that all those sums were expended in the purchase and improvement of the property in dispute; and that the conveyance of the 4th April 1857, to A. B. Landis, was in'trust, and the conveyance of A. B. Landis June 6th 1857, was in performance of his engagement to his wife. Now out of the whole of this offer, the only portions which could have been communications between man and wife are the promises to secure the advancement and its proceeds and the subsequent sums of the wife’s property, received after her father’s death' for her. All the rest is a simple statement of facts. No part of the offer bears any mark of a confidential communication never to be disclosed by either husband or wife although the marriage relation be dissolved by the death of either. “The prohibition,” says Judge Rogers, in Cornell-v. Vanartsdalen, 4 Barr 374, “where she is a competent witness, being divested of all interest, extends to confidential communications, or such as come to her knowledge from her domestic relation. In the case in hand it is difficult to imagine in what respects any confidential communication is divulged or any domestic confidence abused.” It is difficult, therefore, to conceive that the whole of this testi [393] mony was not strictly competent in a case where the wife having sold the property to the defendant was dead, leaving no issue, and neither her husband, nor of course she herself, any party to the suit, and the witness himself being a competent witness and entirely disinterested. In Hitner’s Appeal the evidence excluded was cohabitation, a matter entirely confined to the husband and wife, and upon this point two of my brethren. dissented, and I am certainly not willing to extend it to the present case. ’ There is nothing in the 1st error assigned, nor in any of the errors not already noticed. Judgment affirmed.