Poundstone v. Jones

Opinion by Mr. Justice Fell, The notes of the testimony of the defendant taken at a former trial were offered on the ground that she had become incompetent to testify by reason of the death of the original plaintiff in the action, and they were objected to on the ground that she was not a competent witness at the former trial. The question raised by tbe offer and the objection was whether tlie defendant in tlie trial of an action of ejectment brought by tbe purchaser at sheriff’s sale under a judgment against tlie husband who was then deceased was a competent witness in support of her title. Her title was in controversy. She had not derived tlie title from her husband, but by purchase in her own name, and tbe issue was whether sbe had paid for the property with her separate estate. In Rowley v. McHugh, 66 Pa. 269, it was held that in an action of ejectment by husband and wife in tbe right of tlie wife against a defendant who claimed title under a sheriff's sale of tlie land as the property of the husband, the wife was a competent witness under tbe act of 1869. It was said in the opinion: “ Here tbe wife was not called to testify against the husband, but in her own behalf. The ejectment was in her own right, and the husband was only a nominal party to the proceeding. If he had any interest in the event of his wife’s recovery, it was contingent, and on the side of the wife. The argument that the wife was called to testify against the husband, because the defendant claimed title under the sheriff’s sale of the land as the husband’s property, lias no foundation for its support.” The same [292] question was raised in Young v. Senft, 153 Pa. 352, and the decision in favor of the competency of the wife was put upon the ground that she was not called to testify against the title of her husband, but in favor of her own. There is nothing in the remaining assignments which need be noticed. It was certainly competent for the defendant to show how she acquired the means to pay for the property, and there was sufficient testimony which, if believed by the jury, sustained her contention. This testimony was of such a character that it could not have been withdrawn from the jury, and it was submitted in a charge which very clearly and fully presented the issue raised. The judgment is affirmed.