Norbeck v. Davis

Opinion by Mb. Justice Dean, Philip Doersom, a carriage manufacturer of Lancaster, being embarrassed by debts, on October 8, 1889, for the purpose of preferring certain creditors, confessed judgments to them aggregating about $14,000. On the following 24th of October, B. F. Davis, this defendant, obtained judgment against Doersom, adversely, in the sum of $358.50 and costs. One of the preferred creditors on October 9, 1889, issued execution on his judgment, and on it all the personal property, indisputably owned by Doersom, was sold. But there were some articles of household furniture in the house occupied by Doersom and his family, also a top buggy on the premises, which had not been seized on the first writ. So, on November 16, 1889, Mr. Davis issued execution on his judgment and levied on this property. [404] Lydia C. Doersom, wife of defendant in the judgment, claimed all the household goods seized, and Everts & Overdeer claimed the buggy. This issue, under the interpleader act, was then framed to determine the title to the property. Before it was tried, Mrs. Doersom died, but her deposition in the contention had been' taken before her death, and afterwards her executors were put on the record as plaintiffs. Her husband’s name, apparently, because of the marital relation, had been put on the record with hers before her death, and so remained at time of trial. It was shown the buggy was the property of Everts & Overdeer, and as to that there is no longer any dispute. As to the household goods, there was a verdict and judgment in favor of the executors of the wife, and from that judgment comes this appeal by the defendant and execution creditor. The first three assignments of error relate to the admission of declarations of Philip Doersom, the husband, disclaiming ownership of the property in dispute. There is nothing on the paper books to show for what purpose this testimony was offered, nor anything to show why it was objected to, nor on what ground the court admitted it. The admissibility of testimony, in general, depends on its purpose. The declarations of the husband for some purposes would have been admissible. They could not be given to make title in the wife under the circumstances developed in this case, but as the printed testimony does not disclose that was the object, we will not “ guess ” that it was. Rule 24 of this court says: “ When the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification. Any assignment not according to this rule, will be held the same as none.” There is not a single specification, in the offer or objection to this evidence, of its purpose, or in the assignments of error. Why it was offered, why it was objected to, and why the court admitted it, do not appear. Counsel for'appellant, in his argument, for the first time, urges the objection that it was error to admit the mere declaration's of' the husband to sustain the wife’s title. If the existence of the alleged error had been made to appear, it would have been our duty to consider and pa§s upon it. As it stands, [405] under our rules, we must treat the assignment as if none had been made. Huckestein v. Kelly and Others, 139 Pa. 201. The 4th assignment is to the admission of the deposition of Lydia C. Doersom, the claimant. It is alleged, she was not a competent witness, because her testimony tended to defeat her husband’s title. Without doubt, in a contest between her and her husband as to the ownership of the property, she would have been incompetent. Public policy in such case determines the incompetency; such antagonism promotes marital discord, therefore the law will not tolerate it. By the 4th section of act of May 23,1887, the policy of the law in this particular is restricted to cases where they offer to testify against each other. Are they in that attitude here ? The husband is the defendant in the execution, and the creditor alleges the property seized belongs to his debtor; but the debtor, the husband, disclaims all ownership, and alleges it is his wife’s. How does she testify against him when she asserts a right which he concedes ? She claims and he disclaims the property. The creditor’s averment of title in him does not constitute him the owner. The fact that the seizure, under execution, if consummated by sale, will result in payment of part of his debts, does not establish title in him. If the husband actually claimed the property and was on the side of the execution creditor, then the antagonism which the law contemplates would exist, and render the wife incompetent. But the law does not close her mouth as a witness solely because she is the wife of a debtor whose creditors have seized her property to satisfy his debts. Contention must result from the individual hostile assertion of property in the same thing, before the “ against each other,” which disqualifies, can be said to exist. Pleasanton v. Nutt, 115 Pa. 266, decided before the passage of the act of 1887, is not in conflict with this reasoning. There, the decision was based on the ground that the testimony of the wife would fix the liability of the husband for the breach of an implied warranty in the sale of chattels; her testimony was directly against him. Here, her testimony imposes no additional liability on the husband, if the execution creditor fails of his purpose. The argument of appellant’s counsel is based throughout on the assumption of the husband’s ownership of the property; but the ownership was the very [406] point in dispute, not between the husband on one side and the wife on the other, but the husband and wife on one side and the creditor on the other. The presumption of the 'husband’s ownership would have been the same in case of any other claimant than his wife, and, in the absence of any other evidence, would have been conclusive in favor of the creditor. But this is only a presumption which the law raises; when the wife asserts and the husband disclaims ownership, the presumption no longer controls, and title becomes a question of fact to be determined by the weight of the evidence. It follows that under these circumstances, the wife was a competent witness as we have decided in Evans v. Evans, 155 Pa. 572, a case presenting similar facts and decided the present term. The 5th, 6th, 7th and 8th assignments may be considered together. They all deny the sufficiency of the evidence of plaintiffs to establish title in Mrs. Doersom. The evidence tended to prove these facts: That a large portion of the household property had belonged to Mrs. Doersom more than thirty years before, and had come to her, she then being a widow, from her first husband, a Mr. Norbeck. Objection is made by appellant, that this, at most, only shows title in the first husband. But as he had been in his grave thirty-four years, we think the jury might fairly presume that her title was settled. As some of this property had become worn by use in his family, the second husband had repaired or replaced it. This, appellant alleges, changed the title. We do not think so. If the husband used the wife’s property in his family, and by the use it was worn out, he had a right to replace it, and in so doing he acquired no title. As to the piano, there was evidence to show that, years before, when not indebted to the appellant or to others, the husband had presented it to one of his children, who gave it to her mother. The evidence does not show, as appellant alleges, the husband retained control of it; it was in the house oocupied by him, and he had such control over it as he had of his wife’s clothing, or personal jewelry; he could, by physical force, have taken it back; this, in view of the domestic relation, is, in no legal sense of the word, control. The testimony shows, the wife, when she married, had a separate estate of $5,000, besides this personal property. There was evidence, which, if believed, [407] rebutted the presumption of the ownership of the husband which the law raises from his apparent possession, and which warranted the verdict. All of the assignments of error are overruled, the judgment is affirmed, and the appeal is dismissed at costs of appellant.