#### ELIAS HOOVER v. THOMAS HOOVER.*

APPEAL BY DEPENDANT* PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY.

Argued June *4,*1889 — Affirmed at Bar.

Where, in an action of ejectment, the plaintiff’s title to the land in dispute is of record and regular upon its face, and the defendant claims under a resulting trust, to wit, that the land was paid for with his money and the title taken by the plaintiff for him, it is not error for the court to charge that “ a high quality of evidence is required to establish such a defence.”

Before Paxson, C. J., Green, Clark, Williams, Mc-Collum and Mitchell, JJ.

No. 17 May Term 1889, Sup. Ct.: court below, No. 631 April Term 1886, C. P.

On April 15, 1886, Elias Hoover brought ejectment against Thomas Hoover for a certain tract of land which had formed *202part of the estate of Job.ii Hoover, deceased, tbe father of tbe parties to tbe suit. Issue.

. At a former trial of tbe cause, the court directed a verdict for tbe plaintiff, on tbe ground that the evidence given on tbe part of tbe defendant was not sufficient to make out a defence. On writ of error, tbe judgment entered was reversed, and a venire facias de novo awarded: Hoover v. Hoover, 11 Cent. R. 408. '

At a second trial on October 4, 1888, it was made to appear that John Hoover died intestate on March 17, 1877, seised of several tracts of land, among others, the land in dispute. By proceedings in partition, tbe tract in dispute on September 17, 1877, was awarded to Elias Hoover at a valuation of $1,437.05, and recognizance duly given. The possession of tbe defendant, at tbe time of suit brought, being shown, tbe plaintiff rested.

Tbe defendant introduced testimony tending to show that tbe plaintiff took tbe land in dispute, under tbe proceedings in partition, for him, tbe defendant; that this was tbe agreement between them, and so acknowledged to be by tbe plaintiff both before and after the partition; that to put tbe plaintiff in a position to do this, tbe defendant bad assigned to tbe plaintiff all bis share and interest in bis father’s estate; that immediately after the partition tbe defendant went into possession of tbe land in dispute, and thereafter bad remained in possession.

In rebuttal, tbe plaintiff, for tbe purpose of showing, as was stated, that after tbe date of the assignment tbe defendant bad no interest in bis father’s estate, and therefore could not have paid for the land out of it, and that tbe plaintiff paid for the land in part with tbe assignment., offered in evidence tbe following :

“ Know all men by these presents that I, Thomas Hoover, of tbe county of Dauphin, state of Pennsylvania, for a valuable consideration, and for tbe purpose of better securing moneys loaned me by Elias Hoover, do, by these presents assign and set over unto the said Elias Hoover, of the county and state aforesaid, bis heirs and assigns forever, all my right, title, and interest in the distribution, share, or legacy coming to me from tbe estate of my father, John Hoover, deceased; and I do hereby empower the said Elias Hoover to demand, take, and receive *203the said distribution, share, or legacy to his own proper use and behoof forever; and further authorize Josiah Hoover, administrator of the said John Hoover, deceased, to pay the same over unto the said Elias Hoover, his heirs, executors and administrators.

“In witness whereof, I have hereunto set my hand and seal, this 29th day of December, a. D. 1877.

“ Thomas Hoover, [Seal.] "

Objected to, that the paper was not' such an instrument as would convey real estate: adl that.it was upon its face, was a security for money.

By the court: Objection overruled; exception.1 3

Plaintiff also put in evidence notes of the testimony of the defendant, taken before an auditor in a proceeding by creditors of the defendant to attach his interest in his father’s estate, wherein he testified to the validity and purpose of the foregoing assignment. There was also testimony on the part of the plaintiff that the assignment was made as payment or security for a debt of $500, and as a compensation for maintaining the defendant and his family for two years, while the defendant was unable to work.

At the close of the testimony, the court, McPherson, J., charged the jury:

The plaintiff’s title to this property is a title of record, arising out of proceedings in partition, and is perfect upon its face, so that unless the defendant has made out his defence to your satisfaction, the plaintiff is entitled to have a verdict for the land.

Writings are not to be lightly set aside by testimony of a parol character, or testimony by word of mouth. A man’s security for his property rests upon his title, and it is of the highest importance to us all that titles to real estate should be carefully guarded, aud sljpuld be difficult to overthrow by word of mouth. That is the policy in most states. It is the policy in Pennsylvania, and it is a policy which we must see enforced. There is a rule which our court has laid down to be applied to testimony of that kind, when it attacks a record, and it is substantially this : When a defendant sets up, as the defendant in this case does, that he claims to be the owner of *204a property because of what is called a resulting trust; that is, because he advanced the money to pay for the property, it is necessary for him to mate out that defence by evidence that is clear, precise, and reasonably certain. [It is quite a high quality of evidence that is required.] 3 As our courts have repeatedly said, it is something more than testimony balanced, or leaning a little on his side. The testimony before you must be clear and precise ; it must be reasonably certain, so that if it leaves the jury in a fair state of doubt, the defendant has failed, and the written or record title must prevail.

Now, applying these principles, and they are the only ones that apply in the case, as I think, you must solve this question: Here is a record title which is attacked by Thomas Hoover. He declares that there was a promise or agreement between his brother and himself before the partition, that Elias was to take the property for Thomas’s benefit; and the reason was, as he says, specified to be because Thomas was not fit to take care of his own business. In pursuance of that agreement he goes on to say that the property was so taken, and Elias had it adjudged to him, and that afterwards some assignment was made to Elias of Thomas’s interest in the estate, which was afterwards used by Elias in settlement for the property. Now, the jury will have to determine from all the evidence how these facts are. Elias denies those statements entirely, and says there was no such arrangement. He says that he was willing his brother should have the property if he paid him, and that he is still willing, and that that was the only arrangement; that he and Thomas had had several conversations upon the subject, and that Thomas finally said he might do as he pleased about it, and that he, Elias, finally took it for himself and nobody else. His explanation of the assignment is that it was made as payment or security for a debt of five hundred dollars, and also as a fair recompense for keeping Thomas and his family for two years, while Thomas was unable to work. That is his side of the question, and it is corroborated to some extent, at least, by the form and contents of the assignment.

That is the case. The veracity of some of the witnesses is attacked, and the jury must determine how much weight is to be given their testimony. Whether or not it has been seriously attacked, is a matter for the jury to determine. If they cannot *205rely upon the testimony that is attacked, it must consequently be thrown out. On another proceeding, when it was to the interest of Thomas to support the assignment, his testimony was in favor of it; and now it is argued that when it is to his interest to attack the assignment, he attacks it. , The jury must determine this question, and what bearing it has upon the degree of reliance to be placed upon Thomas’s testimony in this case. As I said, if the defendant has not clearly made out his defence the record title of the plaintiff must prevail. On the other hand, if the defendant has satisfied -your minds by clear, precise and reasonably certain testimony, that his defence is as he states it, and as I have outlined it, he is entitled to a verdict.....

The jury returned a verdict in favor of the plaintiff. A rule for a new trial having been discharged, the defendant took this appeal, assigning as error:

1. The admission of plaintiff’s offer.1

2. The admission of the offer for one purpose, and using it for another.

8. The portion of the charge embraced in [ ] 3

*Mr. J. 0.*MeAlarney, for the appellant.

Counsel cited: Raby v. Cell, 85 Pa. 80; Crail v. Crail, 6 Pa. 480; Reeves v. Railroad Co., 30 Pa. 454; Lackawanna etc. R. Co. v. Chenewith, 52 Pa. 382; Washington M. F. Ins. Co. v. Rosenberger, 3 W. N. 16 ; Trego v. Pierce, 119 Pa. 148.

*Mr. Levi B. Alriehs, Mr. J. R. Weiss, Mr. L. B. Gilbert*and *Mr. L. M. JVeiffer,*for the appellee.

Counsel cited: Earnest’s App., 106 Pa. 319.

*

Hereafter all causes will be entitled as directed by the act of May 9, 1889, P. L. 158, preserving the names of the parties in the order in which they stood in the court below. See suggestions to Members of the Bar: 127 Pa. xxi.

Per Curiam:

On the argument at Bar,

Judgment affirmed.