Sutherland v. Ross

Opinion, Mr. Justice Clark: The lot of ground in dispute is situated in West Conshohocken, in the county of Montgomery. It is one of two lots, Nos. 121 and 122, in a plot of lots laid out by one William Davis, Sr., conveyed by William Davis, Sr., to Nicholas E. Dager, by his deed dated April 6, 1871, and this is admitted to be the common source of title. The plaintiff gave in evidence a deed from Nicholas E. Dager and Elizabeth, his wife, dated March 11, 1874, describing and conveying both said lots to James Sutherland; consideration, $1,350. The defendant thereupon gave in evidence the record of a deed dated February 14, 1877, from James Sutherland and Agnes, his wife, re-conveying the particular lot and premises in dispute to Nicholas F. Dager; consideration $1,000; and also a deed dated April 3, 1887, from Nicholas F. Dager and wife to William Ross; consideration, $1,400. The plaintiff, James Sutherland, then took the witness-stand, and it was proposed to prove by him that the deed from Sutherland and wife to Dager, dated February 14, 1877, was a forgery. Having been sworn on his voir dire, it appeared that Nicholas F. Dager, the grantee in the deed, was dead, and objection was made to the competency of Sutherland to testify to any matter occurring before the death of Dager. The objection was sustained, and the witness held to be incompetent. The plaintiff thereupon called Mrs. Mary Powell, one of the subscribing witnesses to the deed, who testified that Nicholas F. Dager was not present at the execution and acknowledg [385] ment of tlie instrument of writing which she witnessed; that William Haywood, the other subscribing witness, and the justice of the peace before whom the deed purports to have been acknowledged, was present, but that the entire transaction occurred in the absence of Dager, the grantee therein. The offer was then renewed with some modification. The plaintiff’s counsel offered to prove by Sutherland, the plaintiff, not that a forgery w'as committed by Dager, but that Dager employed William Haywood, the justice of the peace, as his agent, on February 14,1877, to prepare and obtain from James Sutherland and his wife a conveyance of the premises in dispute, in consideration of the payment of $1,000; and, whilst in that employment, the agent, Haywood, prepared or had prepared the deed dated February 14,1877, purporting to be signed by James Sutherland and his wife, and witnessed by Mary Nugent and William Haywood, and purporting to be acknowledged before William Haywood, as a justice of the peace, and that no such deed was signed by the witness or his wife, or by Mary Nugent as witness, or acknowledged before William Haywood as a justice of the peace. Objection was also made to this offer, to the same effect as before, which objection was sustained, and this is the first assignment of error. The contention of the appellant is that, as Dager, the grantee in the deed, was not present at the alleged execution of the deed, but was represented by an agent, who is alive and competent to testify as to the whole transaction, Sutherland, the surviving party, may testify, although Dager is dead. In clause (e) of the fifth section of the act of May 28, 1887, it is provided in the plainest manner that where any party to a thing or contract in action is dead, and his right thereto or therein lias passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither the surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of the deceased party, except in certain specified cases, shall be a competent witness to any matter occurring before his death. The thing or contract in action, here, is the right or title to the premises in dispute under the deed of February 14, 1877, which is alleged to be a forgery and the record of which was in [386] evidence. Nicholas F. Dager was a party to that deed, and his right under it has by his own act passed to William Ross, a party on the record, who represents his interest in the subject in controversy; and it follows from the express words of the statute that James Sutherland, who is the surviving or remaining party to the deed, is not, in this case, competent to testify to any matter occurring before the death of Dager, who is deceased. It is true that at the time of the execution of the deed, or at the time of its alleged execution, Dager was not present. This is conceded; but he was a party to the deed, and in privity of estate with the plaintiff; and, although .the transaction may have been conducted by Haywood in his absence, in his interest, that, according to the terms of the statute, would not render Sutherland competent as a witness to testify on that subject after Dager’s death. Such was the construction finally put upon similar language in the act of 1869. After the passage of that act, the question arose whether the exclusion of parties to the action was only as to transactions with the decedent ; and for a time, it must be conceded, the course of the decisions upon that point was somewhat unsteady, but it was the manifest purpose of the statute to close the mouth of him who is adversary to the deceased assignor. In Karns v. Tanner, 66 Pa. 297, the broad and general doctrine was thus stated by Mr. Justice Agítew : “ The true spirit of the proviso, then, seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party whose lips are now closed.” This statement of the law was followed in Watts v. Leidig, 29 Leg. Int. 293; Brady v. Reed, 87 Pa. 111; Hess v. Gourley, 89 Pa. 195; Ewing v. Ewing, 96 Pa. 381; Poster v. Collner, 107 Pa. 305; Adams v. Edwards, 115 Pa. 211. We think this was the settled construction, at the time of the passage of the act of May 23, 1887, which has also been similarly construed in Duffield v. Hue, 129 Pa. 94, and in Parry v. Parry, 130 Pa. 94. As Sutherland was himself incompetent, not only under the words and settled policy of the statute, but as a person “ whose [387] interest is adverse to the said right of the deceased,” his wife was also incompetent for the same purpose. The identity of interest between husband and wife is such that, where one of them is incompetent to testify as a witness, the other is incompetent also: Bitner v. Boone, 128 Pa. 567.* Judgment is affirmed. Footnotes [*] Observe, also, that the wife herself was a party to the deed, the grantee in which was dead :■ — Ref.