Rozelle v. Lewis

Opinion by Rice, P. J., As to the admissibility of the kind of evidence that was admitted under the offer recited in the first assignment of error, we entertain no doubt. As a general rule lines run and marked on the ground control the courses and distances mentioned in the conveyance, and this is as true of the grant [570] by an individual as of official surveys. “The courses and distances in a deed always give way to the boundaries found on the ground, or supplied by the proof of their former existence, when the marks and monuments are gone:” Lodge v. Barnett, 46 Pa. 477. Amongst the numerous cases in which this principle has been recognized, and in the application of which parol testimony has been admitted to show the location of the marks and monuments on the ground which the grantor and grantee fixed as the true line, the following are specially pertinent to this case: Blasdell v. Bissell, 6 Pa. 258; Willis v. Swartz, 28 Pa. 413; Dawson v. Mills, 32 Pa. 302; Craft v. Yeaney, 66 Pa. 210; Burkholder v. Markley, 98 Pa. 37; Rook v. Greenewald, 22 Pa. Superior Ct. 641. The admission and giving effect to such testimony is not in contravention of the statute of frauds and perjuries. No estate in land is created or conveyed by parol any more than there is by the adoption of a consentible line, of which it has been said: “The statute is a rule of conveyance; it requires a writing to create an estate or interest in lands, that shall have more force or effect than a lease or estate at will only. But adjoining owners who adjust their division line by parol, do not create or convey any estate whatever between themselves; no such thought or intention influences their conduct; after their boundary is fixed by consent, they hold up to it by virtue of the title deeds, and not by virtue of a parol transfer:” Hagey v. Detweiler, 35 Pa. 409. So in the class of cases we are considering the written contract or deed' carries the title. But, as in determining the boundaries of the land granted, where there is a discrepancy between the lines run and marked on the ground and the courses and distances mentioned in the writing, the rule of law is that the former control, resort must necessarily be had to parol testimony in order to apply the grant to the subject-matter. We conclude that.upon that principle evidence of the kind under consideration was admissible. The same conclusion is reached by applying the principles of estoppel, as will be seen by an examination of the facts set forth in the opinion of the learned judge below. We refer also to his opinion for an entirely adequate discussion of the ques [571] tion whether the defendant had actual or constructive notice of the plaintiff’s possession and the' extent of his claim. As to the question of the quantity of evidence required to sustain the plaintiff’s contention, and as to the functions of the court and the jury in the determination of such a dispute, it is enough to refer to the case of Rook v. Greenewald, 22 Pa. Superior Ct. 641, and the cases there cited, which are to the effect that in such a dispute the jury are to decide according to the weight of the evidence under appropriate instructions from the court. The remaining question that requires particular notice is as to the competency of the plaintiff to testify to matters occurring between him and Charles Tropp, the latter being dead at the time of the trial. The matters necessary to be noticed in the determination of this question are these: Charles Tropp and Frederick Scheidell, the executors of the estate of Catharine Schadt, deceased, who were empowered by her will “to sell or convey all or any part of my estate and convert the same into money, to be by them securely invested as they may see fit,” made a contract in writing with the plaintiff for the sale to him of lot No. 7 in a recorded plot of lots. After the death of Charles Tropp, the surviving executor made a written contract for the sale of the adjoining lot No. 8 to two sons of Mary L. Lewis. The sons having assigned their interests in the contract to Mary L. Lewis, the surviving executor subsequently conveyed lot No. 8 to her by deed said / to contain a warranty against all persons claiming from Catharine Schadt or her executors. The dispute in this action of ejectment was as to the location of the line between these two lots, the land involved being a strip 3.6 feet in width by 168 feet in depth. It is claimed that the plaintiff was incompetent .under clause e, sec. 5, of the Act of May 23,1887, P. L. 158, which, so far as material here, reads as follows: “Nor where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has 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, shall any surviving or remaining party to such [572] thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness, to any matter occurring before the death of said party or the adjudication of his lunacy, unless,” etc. The contention of the defendant’s counsel is that the thing in action in this case was the plaintiff’s right to the possession of the premises in dispute; that the right to the possession was claimed under his articles of agreement supplemented by the conversation which he'proposed to prove with Charles Tropp; that without this conversation the plaintiff could not recover; and that inasmuch as Charles Tropp was a party to those articles and a party to the conversation, and his right and the right of the estate which he represented in the land in dispute had passed by the deed of the surviving executor to the defendant, Tropp being dead, the foregoing provision of the act of 1887 applies and the plaintiff was incompetent to testify. The appellee’s counsel concedes that M.ary L. Lewis is entitled to whatever interest in the land involved in this case remained in the estate of Catharine Schadt after the delivery to the plaintiff of his articles of agreement, but contends that whatever that interest was, it passed to the predecessor in title of Mary L. Lewis, not from Charles Tropp but from the estate of Catharine Schadt through its other and surviving representative. Charles Tropp, it is true, was a party to the contract under which the plaintiff claims, but the right which the plaintiff derived thereby was not the personal right of Tropp but the right of the estate which he represented. Again, the subject of controversy was the right to the possession of the strip of' land described in the writ, and, to state the proposition in another form, the interest which the defendant represented in that subject of controversy was not the interest of Charles Tropp but the interest of Catharine Schadt or the beneficial owners of her estate, and if this be true the plaintiff in testifying was not testifying under the presumed influence of an interest that was adverse to the right of Charles Tropp. It is not clear therefore that the provision of the act of 1887 above quoted applies in terms to the case in hand, and it is to be borne in [573] mind that since the passage of the act of 1887 competency is the rule; incompetency the exception. “Departures from the common-law rules of evidence are for the legislature, and, when so made, inequalities, real or apparently so, resulting from the legislative removal of the disqualifications of witnesses cannot be urged as reasons why judges ought not to read the words of legislators as they are written: ” Brown, J., in Allen’s Estate, 207 Pa. 325; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225. In permitting the plaintiff to testify as to the transactions with Charles Tropp, there was no greater inequality produced than there would have been if the transactions had been with an officer of a corporation, or an agent who had subsequently died. Perfect equality is unattainable, and has not been attempted in this legislation. The assignments of error are overruled and the judgment is affirmed.