Barbour v. Wiehle

Opinion, Mr. Justice Clark : The parties to this ejectment claim title from a common source. The premises in dispute, it is conceded, are part of a larger lot of ground owned in fee by Jacob Dean, who, on the 3d October, 1867, executed a mortgage thereon to the Ministers, etc., etc., of Immanuel Church, in $2,666.66 (afterward reduced to $2,000.00), to secure the payment of purchase [314] money. On the 2d October, 1869, Jacob Dean conveyed subject to the mortgage to Solomon Wilde, who by deed dated 1st January, 1874, conveyed the premises in dispute to Isaiah S. Barbour, the defendant below, without any reference to the mortgage. The mortgage of the Ministers, etc., etc., on the 30th January, 1868, was assigned to William Hall Waxler ; who, on 3d July, 1869, assigned to Heiskell et dl.; who, on the 16th June, 1870, assigned to Edward Browning; who, on the 15th May, 1878, assigned to Joseph Wilde,'who, on the 8th July, 1878, conveyed to Elizabeth Psotta, the plaintiff’s testatrix; at which time, Solomon Wilde delivered to her a declaration of no set-off; all of these respective assignments were duly recorded. It appears, however, that a release of the lien of the mortgage, as to that portion of the mortgaged premises conveyed on 1st January, 1874,-by Solomon Wilde to Isaiah S. Barbour, was on the 13th July, 1874, executed by Edward Browning, then the holder of the mortgage, and delivered to Solomon Wilde; but the release was never recorded. . A scire facias was issued on the mortgage by the plaintiffs below, being the executors of the last will and testament of Elizabeth Psotta, deceased, to No. 642 of March Term, 1879, against Jacob Dean, with notice to Solomon Wilde, terre-tenant, upon which judgment was obtained, and, on the 6th March, 1882, the mortgaged premises were sold to the plaintiffs below, executors, etc., of Elizabeth Psotta, deceased, to whom a deed in due form covering the entire premises, was executed. At the trial of the ejectment the foregoing facts, which are wholly undisputed, were exhibited in evidence. As the release of the lien of the mortgage by Browning to Wilde, dated 13th July, 1874, had not been recorded, the defendants, in order to establish notice to Elizabeth Psotta of the execution and delivery at the time the mortgage was assigned to her, produced as a witness, Solomon Wilde, by whom the premises had been conveyed to Barbour, and offered to prove by him, as follows: “ That the said C. A. Max Wiehle, one of the executors and plaintiffs in said suit and now present in court, was, during the lifetime of Elizabeth Psotta, now deceased, her [315] agent or attorney, and was, in point of fact, such agent or attorney, on or about the eighth day of July, 1878, when the assignment of said mortgage was made to her by Joseph Wilde; and that the witness then notified the said C. A. Max Wiehle, the then attorney or agent of said Elizabeth Psotta, deceased, of the execution of the said release of a portion of the premises described in the writ of ejectment from Edward Browning to Solomon Wilde, dated the thirteenth day of July, 1874; and that the defendant, the said Isaiah S. Barbour, was the owner of that portion by deed from him, the said Solomon Wilde, dated January 1, 1874, and recorded on December 16, 1874, in Deed Book F. T. W., No. 171, page 247.” Objection having been made, the offer was overruled, and this action of the courtis the error assigned. When Wilde delivered the deed of January, 1874, to Barbour, the mortgage was an actual incumbrance upon the property, for which Wilde was responsible on the covenant implied in the deed. The release was not executed until 13th July, following; it was a release to Wilde, had been delivered to him, and he had passed it into the possession of Barbour; but for the genuineness, efficiency and validity of that release, Wilde was responsible to Barbour. It was the only protection he had against his covenant. He was therefore interested in the suit; andas the suit involved the right of Elizabeth Psotta, with which she was invested in her lifetime, and was by the executors of her last will, qua executors, he was plainly within the proviso of the act of 1869, and incompetent to testify as to any matter occurring in her lifetime. If Barbour had formally released Wilde from liability on his covenant, before or at the time he was called to testify, he might perhaps have been competent for the purpose for which he was offered; but this was not done, and, in this respect, the case differs from Warren v. Steer, 112 Penn. St. 634. In that case, the witness, Henry Davis, was released from all responsibility on his covenant before he was called, and as he was not a party to the suit and was divested of all interest in the result, he was held to be competent. The rule which, in certain cases, excludes the assignor of a chose in action from testifying in support of it, recently delivered in Fross’s Appeal, 105 Penn. St. 258, is but the reitera [316] tion of a well known principle, recognized in a large number of cases, some of which are there referred to. But it has no application here; the rule referred to is one founded in public policy; it- existed independently of and long before the passage of the act of 1869, and is applicable only to suits upon choses in action. But even if the witness had been competent, the offer is set forth in such vague and indefinite terms as to have justified its refusal. It did not contain any offer to show that Wiehle was the agent or attorney of Elizabeth Psotta in the transfer of the mortgage, or that he gained the information while engaged in the matter of his employment; and this, by all the cases, is essential to bind the principal: Bracken v. Miller, 4 W. & S. 102; Reed’s Appeal, 34 Penn. St. 209; Houseman v. Girard B. & L. Association, 81 Penn. St. 256; Bigley v. Jones, 17 Pittsb. L. J. 140. The judgment is affirmed.