Chess v. Chess

The opinion of the court was delivered by

Smith J.

The long and warmly litigated cause of Chess v. Chess and others, -was tried at the last circuit court, at Pittsburg, before Mr. Justice Rodgers, and again'comes before this court for decision, on an appeal from the judgment of that .court. It is a family contest, and has not only been before the court of common pleas, and the supreme court of Allegheny county, but also heretofore before the circuit court; and like most family disputes, has engendered more ill blood than is usual in other controversies: indeed, in the present instance, this has not been merely confined to the parties immediately interested, but extended, as we regret to observe, to some of the -witnesses. The late trial, as well as a former one, was long and arduous, and after a most patient investigation, and an examination of many witnesses, which occupied the attention of Justice Rogers ten days, the cause was submitted, under his charge, to the decision of -the jury. The action is an ejectment, brought by John Chess against William Chess and others, to recover the possession of about one hundred and twenty-one acres of land, a part of a larger tract, late the estate of William Chess, deceased, father of the parties to this suit. The plaintiff alleges, that the tract of land which he claims, was conveyed to him by William Chess, his father, .on the 14th February, 1823, by deed. The consideration in this deed mentioned, is “ natural love and affection, and one hundred dollars.” The defendants allege it was-not so conveyed, and claim the land as heirs at law of the said William Chess, deceased; so that both parties claim under the same person.

At the trial, the defendants contended, that William Chess was generally and partially deranged; that he was of weak mind, and a fit subject of imposition and fraud; and that such was the case when he executed the deed to John Chess. The plaintiff denied this, *38and contended that his father was sane at the time; and further, that even if he had been insane on the 14th February, 1823, yet, that he afterwards, at a time when he was in his perfect senses, ratified and confirmed the deed, and that therefore he is entitled to recover the land. The jury found a verdict for the defendants, and the court refused to set it aside, and grant a new trial, but rendered a judgment on the verdict, from which the plaintiff has appealed to .this court, for the following reasons: — That there was error, 1st. In admitting evidence of the declarations of William Chess, the grantor, after the execution of the deed in question, as testified by John Ross, William Kearns and others. 2d. In admitting the evidence of Samuel Thompson, Benjamin Darlington, T. B. Dallas, George Evans, and others, in relation to the credibility of John Ross, whose general character had been impeached by the plaintiff, and of whose general character these witnesses had no knowledge. 3d. In the court charging the jury, that if the deed of the 14th February, 1823 was invalid at that time, it could not be made valid by any subsequent act. 4th. In the court taking from the jury the consideration of the question, whether the deed of the 14th February was confirmed by any subsequent act of confirmation, or by a new1 delivery at any time afterwards. 5th. Inf charging the jury that recording the deed was no delivery, but only evidence of it, of which jury were to judge. 6th. In sustaining the challenge, by defendant’s counsel, of William Kerr, a juror, on the sole ground that he was a witness in the cause. The exceptions or reasons for a new trial, have been very zealously and ingeniously argued by the counsel, and many authorities have been cited.

In regard to the first reason, it may be observed, that the principle is well settled, that no one shall be permitted to invalidate his own deed by his subsequent expressions: hence it is contended by the plaintiff, that the court before which the cause was tried, erred in admitting the declarations of William Chess, made after the execution of the deed to John Chess. " In reference to this part of the case, we ought constantly to keep in mind, what the real question before the court was, and under what circumstances the conversations of the grantor relative to other subjects, as well as to the deed, his declarations and acts, were admitted in evidence, and submitted to the jury. The insanity of the grantor was alleged on one side, and denied on the other; and the jury were called to say, whether William Chess was sane, or insane, on the 14th February, 1823. If, under such circumstances, I was required to decide upon the sanity or insanity of a person, I know not how I could do so, unless I was permitted to judge from his conversations, declarations and acts; these would be the only means to enable me to form a judgment. Here the defendants offered, and the court received, evidence of the conversations, the declarations and the acts of William Chess, *39not, as is supposed, for the purpose of verifying the facts stated in those conversations, hut to shew the state of his mind — not to effect his deed — not as declarations made contrary to it, after its execution; hut to shew imbecility of judgment, weakness of intellect and insanity; in short to show the true character of his understanding, on and about the 14th of February, 1823. This, and this alone, was the object of the evidence offered. The court did not decide that-the declarations of the grantor, after deed made, could be received to destroy it; but expressly said, that these declarations were admissable, not as revoking his acts done, but as the means o£ ascertaining whether William, Chess was sane or insane, weak or.' competent. On this point the parties were at issue; the defendants alleged insanity — it therefore became incumbent on them to prove it, since every one is presumed to be of perfect mind and memory, unless the contrary be proved. In this case the defendants pursued the proper course, and proceeded to prove William Chess’s insanity, by the very index of his mind, his conversations, declarations and acts, for which purpose they examined many witnesses. The plaintiff did the same, to prove his sanity, and thus there was brought before the court a mass of contradictory evidence, all of which was fairly and legally submitted to the consideration of the jury. The judge on the trial, discovered no inclination either way; but on all the evidence, left the sanity of the testator as a mere fact to the jury, who were the judges of it. I fully agree with the counsel for the defendants, that the case of Smith v. Irish, so often mentioned, has placed this matter upon the true ground, and decides it. If, indeed, the evidence had been received for purposes similar to those mentioned in the numerous cases cited on the part of the plaintiff manifest error would have intervened; the object, however, having been entirely different, the cases do not apply. We think there was no error in admitting this evidence.

In the next place it is said that the court erred in admitting the evidence of Samuel Thompson, T. B. Dallas and others, in relation to the credibility of John Ross, one of the defendant’s witnesses,, whose general character had been impeached by the plaintiff and of whose general character the witnesses had no knowledge. The plaintiff after John Ross had been examined in chief on the part of the defendants, called a number of witnesses to his general character in his neighbourhood, as to truth, who said it was bad. The defendants then to rebut this, and support his character, called witnesses who testified, in substance, that they had known him many years, some of them all his lifetime, but that they could only speak of his general character as to veracity, without being able to say what it was in his immediate neighbourhood; and some of these witnesses were then asked, whether they would, believe him on his oath, from what they knew of his general character? And of this *40the plaintiff complains. He contends, that as the witnesses only knew his general character, hut could say nothing of his character, in his immediate neighbourhood, they ought not to have been admitted to testify. I have not been able to discover any error in the admission of this evidence: indeed I thought the point here raised, had been at rest since the decision of Kimmel v. Kimmel, 3 Serg. & Rawle, 336. In that case the question was asked, “ What is the general reputation of Peter Kimmel, in the county, as a man of truth?” which was excepted to, and the court below sustained the objection, and overruled the testimony. The supreme court, on a-writ of error, reversed the judgment; and Justice Duncan in that case said, “ character and reputation are the same: the reputation which a man has in society is his character, and where it is in issue, particular facts cannot be inquired into, nor given in evidence, nor can mere opinion.” In the case cited from 11 Serg. & Rawle, 199, this case of Kimmel v. Kimmel is recognized. The question there was, whether he knew the general character of the witness1 This, said the court, was strictly proper, and add, what is said by people, in general, is the true point of inquiry; and every thing short of it is incorrect; so that we find, the witness is not strictly confined to the immediate neighbourhood of the person, but is allowed to say, what his character for truth is in the county, or what the people in general say as to his general character. In this last mentioned case it. is declared, that to the question, whether the witness would believe him on his oath? a direct answer would not be objectionable; provided the belief was founded on the witnesses’s knowledge of his general character, otherwise, it would not be to the purpose; though I will observe, that in practice, I have heard the single question, “would you believe him on oath?” put for thirty years- and more without objection. To come then to the case immedi-ately before us: Justice Rogers decided that in attacking the character of a witness, the proper mode was to ask the witness-whether he was acquainted with the general character of the witness for truth and veracity, and whether from that general-character, he would believe him on his oath? He further decided,that in supporting the character of the witness, the same mode should be pursued. The witness whose character was impeached, lived in St. Clair township, about four miles from Pittsburg, and is a man well known in Allegheny county. The witnesses who supported his character, live in Pittsburg; they had seen him often, transacted business with him, knew him well, and were acquainted with his character. With regard to the meaning of the terms, neighbours, neighbourhood, immediate neighbourhood, I would say, in reference to the present objection, that they were co-extensive with the range of John Ross’ frequent intercourse with his fellow citizens, which, from the evidence, includes the county of Alie*41gheny. On this part of the case I am authorized to state, that at the trial of the case, Judge Rogers was of opinion, although he did not so decide, that greater latitude is given in support, than in attacking character; and this.I think is abundantly supported by the authorities, and by the reason of the thing. So that if there was error, it was in favour of the plaintiff who excepts. But, in our opinion, there was no error; and anew trial cannot be -awarded.

I proceed to the examination of the 3d and 4th exceptions, which may be considered together. In regard to the third, 1 must, however, observe, that the counsel have changed the words and meaning of the judge, to make the error of which they complain. The exception is, that the jury "was told, if the deed of 14th February, 1823, was invalid at that time, it would not be made valid by any subsequent act. The court did not say so — the words of the Judge are, “ If William Chess was insane at the time of the execution and delivery of the deed, or if it was procured by imposition and fraud, the deed was absolutely void, and no acts or declarations of his, which have been given in evidence, would confirm it.” The meaning of the judge is evident, and cannot be misunderstood; he did not inform the jury that an invalid deed could not be made valid. The cases cited on this subject cleaidy establish the distinction between a void and an invalid or voidable deed, and that the former cannot-be confirmed, though the latter may. In Coke Litt. 295, b. a confirmation is said to be a conveyance, whereby a voidable estate is made good, or a lesser estate is enlarged; but when a deed is void, then there can be no confirmation. In 1 Wils. 320, it is decided, that articles and conveyances obtained by fraud and imposition, were not made good by the subsequent acts and declarations of the grantor. So also in 15 Johns. 573, and Duncan v. Findley, 4 Serg. & Rawle, 483, and many more cases might be cited, establishing the same doctrine. I think Lord Mansfield somewhere has said, there could be no confirmation of a thing absolutely void; but that the acts of the. grantor might operate as a new grant. Were there any such acts proved in this case? I have looked for these in the evidence, but looked in vain: they are not to be found in the evidence: (I speak here my own sentiments) on the contrary a host of witnesses, proved Mr. Chess, the father, to be a man of weak and confined intellect, at intervals clearly insane, and at all times incapable of transacting business, unless with the advice of his family. He did not for many years before his death, manage or direct the business of his farm, but left it to others. For years, as the plaintiff’s own witnesses proved, he entertained a groundless antipathy against his wife and his eldest daughter; and some time previous to the 14th February, 1823, he went to reside with the plaintiff, who had before been advanced more than a child’s share, and whose influence over him I can hardly doubt. In short, the *42circumstances, before and at the execution of the deed, were very suspicious, and after the execution the grantor returned with John, continued with him, and subject to his influence, until near his death; during all -which time, there is not any act or expression, not a whisper proved, indicating a confirmation of his deed. To me it does appear, that the condition of his intellect ivas. no better after, than before or at the date’of the deed; if, indeed, there was any change, it was for the Worse. When he spoke of the contents of the deed, he spoke- of it as containing one hundred acres and no more, although the deed contains one hundred and twenty-one acres; and we are told that the surplus of twenty-one acres is full of coal, and therefore very valuable. When and where then, I ask, did he confirm the deed'? But I repeat it, if there was actual fraud when the deed was executed, it could not be confirmed; for it théri comes directly within the principle settled in Duncan v. Findley, 4 Serg. & Rawle, 483, and since in Yard v. Adlum, 1 Rawle, 171. 1 cannot discover that the court took any facts, which were offered to prove a confirmation of the deed, from the consideration, of the jury, to say whether the grantor was sane and of perfect mind, and free from imposition or fraud, at the time the alleged confirmation was made or not. These exceptions are not sustained.

The 5th reason is, that the court erred in charging the jury, that recording the deed was no delivery, but only evidence of it, of which the jury were to judge. In the argument on this point, the counsel, with much apparent plausibility, contended, that by our recording act of 1715, deeds of bargain and sale have the same effect as a feoffment, that enrolling is like livery of seisen, and that a deed takes, effect from it. Without entering into a minute examination of the soundness of the doctrine contended for,, as that appears to me not necessary, I will venture my opinion, thus far, that although a feoffment, lease and release, fine, &c. are said to operate by transmutation of possession, and a bargain and sale by the act alluded to, has the same legal effect as as a feoffment or release, yet the time when the deed of bargain and sale takes effect,.is the time of actual delivery. In the evidence, I can see no proof of the delivery of the deed, or any tiling to show who placed it on record; indeed, it appears to me, there is not the colour of evidence that William Chess took the deed to the recording office; all that is proved as to this part of the cause, being, that two or three weeks before the 1st of April, the old man came to the river, and said, “he was going to get the deed recorded;” and thus far he is traced, and no further. It was not then recorded, and not until about three weeks after, by whom, no one does or can say. I have examined the testimony bearing on this part of the cause, with some attention, and it appears to me, that if the deed was not delivered on the 14th February, 1823, there is no evidence, that *43it was delivered in fact at any other time. The mere reading of it is not a delivery, it is evidence only of a delivery. Delivery is requisite to the proper and legal execution of a deed, and it may be, as stated in Shepp. Touch. 57-58, and 12 Johns. 421, either actual, by doing something, and saying nothing, or else verbal, by saying something and doing nothing; or it may be by both; but by one or both of them, it must be made: for otherwise, though it be ever so well sealed and written, yet it is of no force. The delivery may be to the party, or to any one for the party, if duly authorized; or to a stranger, for the use of the party, without authority. I cannot see, in this case, any evidence of a delivery by William Chess. If then the deed was not delivered on the 14th February, 1823; if on that day the grantor was insane; it was incumbent on the plaintiff to show when it was delivered. He has not done so; and in the absence of proof to the contrary,-the inevitable presumption is, it was delivered in fact on the day it bears date: but on that day the jury have pronounced him to have been insane, and it is therefore almost unnecessary to say, this deed could not have been legally executed. The recording of it, therefore, was no delivery; at best, it was merely evidence of delivery, of which the jury were to judge. I am accordingly of opinion, that in respect to this part of the cause, the judge charged correctly, and that, for the reason here assigned, we ought not to grant a new trial.

One exception more remains to be adverted to. It is, that the court erred in sustaining the challenge of the defendants, to a juror, on the sole ground that he was a witness in the cause. In the case of Harper Irvine v. Kean, 11 Serg. & Rawle, 280, the cause of challenge was “ that .the juror had been examined before arbitrators, as a witness for the defendant;” and it is there said, that a juror is a competent witness, and that therefore it cannot be a rule, thatone cannot be a juror, because he has given testimony in the same cause before another tribunal: but it is also there said, that it seems if the testimony be of such a nature, as to show that he had formed an opinion in favour of one of the parties, it ought to exclude him from the jury. • And this is right. In this case the juror wished to be excused, and stated he was a witness. It did not then appear what he would prove; but it was known he was a witness for the plaintiff: and if, as it has been said, he was to be called to impeach the character of John Ross, who was an important witness for the defendants, and whom it was said the juror would not believe on oath, he ought to have been excluded from the jury. In delivering the opinion of this court, in a case at the last term for the middle district at Sunbury, I-said, that it did not escape the discernment of our legislature, that a principle requisite to secure a due administration of justice, and fair and impartial trials, was to have jurors who were impartial and entirely free from all kind of bias, *44or the suspicion thereof; that like Caesar's wife, they ought not only, to be pure, but unsuspected. Our jury law manifestly provides for an impartial jury. What was done in this particular, in the case before us? Why a doubtful man was set aside, in a great measure .upon his own request, and one not liable to any objection, substituted. ■ Surely this, was not .error. In fine, we are of opinion, that a new trial ought not to be granted, for any of the reasons assigned, but that the judgment of the circuit court should be affirmed.

Top, Justice, dissented.