Ingham v. Crary

The opinion of the court was delivered by Gibson, C. J. The plaintiffs claim through a conveyance from . their father to Kinsey, an inhabitant of Jersey, who obtained the legal title for a valuable consideration, as it is alleged, and without notice of the equitable estate of Perry and his wife, which, whatever it may be, is vested, at least for her life, in Beach, one of the defendants. To rebut this allegation of a purchase without notice, it was open to the plaintiffs to show that the title was conveyed to Kinsey on a secret trust to enable the grantor to institute an ejectment in his name, in the Circuit Court of the United States; and with a vipw to this the defendants might clearly examine the subscribing witness, who was also the attorney of the parties, not only as to what passed at the execution of the deed, but as to what he himself did in consequence of it; and if it should turn out, as it did here, that he immediately instituted an ejectment in the federal court, on failure of which the premises were reconveyed to the [394] family of the grantor, it would furnish not only competent hut satisfactory proof that the original conveyance was intended merely to give colour of jurisdiction to that court; in which state of the fact, it would be without effect as to the title of a third person. The docket entries in the Circuit Court which were offered, for any thing that appears, to show that another action for the same land was pending when the present suit was instituted, were undoubtedly 'inadmissible. It expressly appears by the act of authentication, that the whole record was not certified; and perhaps there is in Pennsylvania, a peculiar fitness in rejecting the arbitrary and often inaccurate memoranda and references from the minutes on the docket to the various parts of the record, -as evidence of its contents. Even convenience would not be served by relaxing the rule which requires the whole record to be certified, it being as easy to procure the whole as a part; and were any thing less than the whole to suffice, we can readily see what abuses would ensue from selecting particular parts and suppressing the rest. Here the identity of the premises was the fact on which the effect of the record as evidence in the cause essentially depended; and to prove it, an abstract of the description in the declaration was certainly inferior to the description itself. The judge himself became convinced of the incompetence of the record, and directed the jury to disregard it; but sucha direction was held in Sheaffer v. Kreitzer, 6 Bin. 431, and Nash v. Gilkeson, 5 Serg. & Rawle, 352, insufficient to repair the consequences of the error. • It is not to be doubted that the evidence to establish the trust, was perfectly competent. It is generally true that previous stipulations merge in the conveyance which is the consummation of the agreement; and this holds between the immediate parties in regard to questions of satisfaction of previous covenants,. but not between one'of the parties and a third person in regard to collateral matters; else a conveyance of the legal estate would, in every case, rebut the implication of a trust. Mrs. Ingham, in the absence of her husband, applies to Mr. Fell to purchase the lot in dispute for the benefit of her daughter Mrs. Perry. The terms are settled and reduced to writing; and, at the time for executing the contract, her ability to treat is recognized by her husband, who takes the conveyance to himself and not to his daughter, only because he deems it prudent to vest the legal estate in himself, the son-in-law being in trade. Had the gift .to the daughter been purely gratuitous, it might have been guarded from the claims of her husband’s creditors by the creation of a trust; but her equity arises from an expenditure of money by her husband in pursuance of an understanding by all parties, that the lot with the improvements should be a provision for her; without which the gift would be void. I discover no evidence of a gift to Perry himself, in the absence of which the ex395 pendit-ure of his money would give him no estate, in addition to the freehold which the law allows him in her right; which, however, is sufficient, even without the birth of a child, (the wife being alive,) to entitle the defendants to a verdict; and should the jury,-whose province it is to judge of the intention-from the evidence, be satisfied that the gift was to Perry, or to him and his wife jointly, the case would certainly be no worse for the defendants. In the ad-, mission of this part of the evidence, therefore,-and the direction of the judge as to its legál effect,* we perceive no error; but for the comparatively unimportant error in admitting the extract of a record, we regret to say the judgment must be reversed.- Judgment- reversed, and a venire de novo awarded.