Carey v. Fairchild

Opinion by Mr. Justice Trunkby: John Batterton and Elizabeth- Oarey on June 1, 1876, conveyed the land to Dr. J. P. Yought, vesting in him a complete title. On the same day John Fairchild loaned Vought $800, which was secured by a mortgage of the land. The administrators of Fairchild, having obtained judgment upon the mortgage and issued execution thereon, purchased the property at sheriff’s sale. They brought this action in ejectment against the persons in possession, Mrs. Carey and Dr. Vought, upon whom the writ was served, and both appealed from the award of arbitrators. More than three years after the suit was begun Yought filed a disclaimer. To defeat the plaintiffs’ recovery the defendant sought to establish by the testimony of Yought, “that simultaneously with her assignment, to Yought and as the sole inducement to and sole consideration for it, John Fairchild agreed that if she would so assign her contract, thereby enabling Vought to mortgage to Fairchild, he, Fairchild, would pay her the amount of money she had paid upon and put into the property, viz., about $440, and further agreed that she should retain possession of the property ’til he paid her that sum.” Without stopping to consider whether, were it admitted that Fairchild made such oral promise, it would be a good defense, we will pass to the only question which is presented for review, namely, Was Yought a competent witness to impeach the mortgage ? The vesting of the title in Yought, the giving of the mortgage and the making of the alleged oral agreement were at the same time. Fairchild is dead, and the plaintiffs who purchased at the sheriff’s sale hold under the mortgage executed by Yought. They represented the deceased party. 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. Earns v. Tanner, 66 Pa. 297. Where the grantee in a deed is dead, the grantor is not a competent witness to impeach the title of the grantee’s devisee by showing that the deed was intended to be in trust for the grantor [343] and Ms heirs. Murray v. New York, L. & W. R. Co. 103 Pa. 37. Yought was holder of the title to the land and the mortgagor. Aside from his testimony there is nothing against the plaintiffs’ title, for on the face of the deeds and record they have as good title as was vested in Yought. Upon the defendant’s showing, she was interested in the transaction. Both are excepted out of the operation of the act of 1869, by the proviso which compels the surviving party to a deed or contract to be silent, unless he who succeeds to the right of the dead consents that the survivor may speak. The defense was an attempt to show by oral testimony that the mortgage to John Fairchild was something else than its written terms, and the mortgagor was incompetent for that purpose. Had Yought not been made a party in the ejectment the case would be no different. Being incompetent, whether a party or not in the action, the act of March 28, 1867, does not apply. Judgment affirmed.