Appeal of Daisz

Opinion, Mr. Justice Clark: Under the ruling of this court in Bitner v. Boone, a case from Lancaster county argued at this term and not yet reported, [575] [ante, p. 567], the auditor erred in not excluding the evidence of Matthew D. Bush, who, as the husband of Mrs. Anna Bush, an interested party, was incompetent. But, excluding this evidence, there was sufficient to justify the auditor’s conclusions, and the decree of the court. There was other evidence from which the delivery of the deed from Silas L. Tucker to Mrs. Bush might fairly be inferred. Charles Frailey testifies that he found the deed in her husband’s hands; that her husband gave him the deed, with instructions to prepare a deed to Christopher Daisz, which he did, and placed both the executed and the unexecuted papers in the hands of Daisz, where they appeared to have remained until the time of his decease. The deed having been passed out of Tucker’s hands and found in the hands of the daughter’s husband, it is fair to infer, in the absence of all proof to the contrary, that the deed had been delivered. There is evidence that, on September 4,1884, Daisz advanced $1,575 to his daughter, but apart from the fact that Daisz entered into, and remained in, the reception of the rents, there is absolutely no evidence that the daughter at any time in fact agreed to convey the property. The existence of a contract rests upon a mere implication which is supposed to arise from the facts stated. The terms of the contract, if any existed, are not shown ; the delay is not explained; the whole matter rests upon mere conjecture. Under such proofs, specific performance would not be decreed. The decree of the Orphans’ Court is affirmed, and the appeal dismissed at the cost of the appellant.