Stecker v. Shimer

5 Whart. 452, 1840 Pa. LEXIS 236

Opinion

The opinion of the Court was delivered by

Rogers, J.

The rule that a person cannpt be a witness to invalidate an instrument to which he is a party, is confined to paper strictly negotiable, and which has been actually negotiated. Although then, there is nothing in that exception, yet the witness was properly excluded, on the objection of interest, for if the assignee fails ,to recover from the defendant, because nothing was due at the time of the assignment, the witness is liable to refund the amount paid on the implied warranty. Gest v. Espy, (2 Watts, 265.) Crotzer v. Russell, (9 Serg. & Rawle, 80.) Baxter v. Graham, (5 Watts, 418.) And Kelly, use of Eichman v. Midler, decided at this term.

* But the objection is equally strong to the subject-matter of the testimony. On the face of the proceedings in the Orphans’ Court it is very clear, that John Stecker had no lien on his own land for any portion of the money payable after the death of the widow. As by the acceptance of the purpart and the decree of the'Court, he became the absolute owner in fee simple of the premises, the lien so far as it affects his share of the valuation-money was extinguished. In other words he cannot occupy the position of both creditor and debtor. And this would seem to have been the understanding of the' original parties to the contract; for in the first deed, Stecker to Jacob Shimer, the reservation is made subject to the payment to the other children and representatives of the deceased intestate; plainly excluding himself from any benefit .to be derived from any portion of the valuation money which' is made a lien on the'premises. In the second deed, Jacob Shimer to Edward Shimer, the phraseology is somewhat varied by the omission of the word other, but this will not alter the construction. If the case depended on that deed, in connection with the previous proceedings in the Orphans’ Court, it would not amount to a covenant to pay him the proportion of the widow’s share, which had been extinguished by the confirmation and decree of the Court. It would be á covenant to pay the portion of those children only, whose shares were charged on- the land, to the exclusion of the grantor in the deed. In plain opposition to the legal effect of the deeds, the plaintiff offers to prove the contents of the agreement, which is lost, between the witness and his vendee, in connection with the reservation in the deed to the defendant. From what has- been already said, it results, that the testimony derives no aid from the last deed. It is also manifest, that proof of the contents of the agreement, can make the case no stronger than it would be on the production of the article itself. The defendant did not offer to prove specifically a mistake by the scrivener in drawing the deed; but the evidence is adduced, as is distinctly said, to prove the contents of the article; from which the inference is, drawn, that because they differed in some of their essential terms, therefore the scrivener had mistaken the instructions of the parties.. From the premises however, no such inference can be legally drawn: for although you may show a mistake by parolj in which case the Court would reform the deed, yet when it is executed and there have been articles of agreement between the parties, the articles are consummated and merged in the deed; and the legal presumption is, that when they differ', the parties have entered into a nevy agreement. The mere fact that they do not agree will not authorize the interference of a Court of Chancery; but the Court will only reform the deed when other proof is given by the subscribing witness, by the scrivener, or in some other manner, that the discrepance has arisen from misapprehension or mistake.

The other exceptions to the charge, on an intimation from the Court, were properly abandoned. The defendant who is a bona fide purchaser, cannot be affected by articles of agreement unless he had notice of their contents; and there is nothing in this deed which can lead him to a knowledge of the existence of any secret lien on the premises. It was essential to a recovery, that'the jury should be satisfied that the sum for which the suit is brought, was charged on the land ; that the defendant knew it, and agreed that it .should be so. The proceedings of the .Orphans’ Court do not make it a lien, but they distinctly show, that by operation of law, it was paid. An erroneous opinion of the facts, if any such there be, is not the subject of error, and can only be corrected on a motion fora new trial!

Judgment affirmed.

Ante. Page 446.