Edith B. Galbreath, Luther C. Braham, Darrell L. Gregg, Galbreath, Braham & Gregg, Butler, for appellant.
James E. Marshall, John H. Marshall, Harry K. McNamee, Marshall, Marshall & McNamee, Butler, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 374]
The School District of Donegal Township instituted ejectment for a tract of land upon which it had erected a school building in 1889 or 1890 and used for school purposes continuously until 1947. John Pontius was then the owner of the land and, in the absence of a deed from him, the school district relied upon the presumption, arising from occupancy of the land for 60 years, that John Pontius had granted a full and unqualified title. It also claimed title by adverse possession.
Defendant is a successor in title to a larger tract of which the school property is a part. After the school district ceased to use the property, she took possession of it and padlocked the doors. She denied that John Pontius had granted any rights to the school district and, to the contrary, averred that in 1894 George Pontius, (son of John, who died in 1892 and devised the larger tract to George), orally gave permission to the school district to use the lands in question for 'so long as they were needed for a school and when they no longer needed such land for a school the same was to revert to the then owners of the same.'
The jury returned a verdict for defendant. The school district moved for a new trial and for judgment n. o. v. The court below stated that 'a new trial should be granted' but, without acting upon the motion for it, entered judgment n. o. v. for the school district. The defendant appealed.
At the trial Willard Pontius, a son of George, now deceased, was permitted to testify, over objection, that he was present in 1935 when his father sold the larger tract to Ida Boehmer, defendant's mother and predecessor in title and from whom she inherited the property, and that his father there stated: 'A. To the effect that there wasn't any property, that there was no property
[ 171 Pa. Super. Page 375]
ever transferred, there would be no papers to that effect and they were told the property, if not used for a school building any more was to automatically be a part of the farm.' This and other similar statements were received as declarations of a deceased prior owner against his interest.
The testimony was clearly inadmissible. Declarations by a prior owner, whether dead or alive, against his interest, made while holding the legal title to the property are admissible in evidence against him and against those claiming under him. Gibblehouse v. Stong, 3 Rawle 437; Floyd v. Kulp Lumber Co., 222 Pa. 257, 71 A. 13; Dawson v. Coulter, 262 Pa. 566, 106 A. 187; Greiner v. Com., 334 Pa. 299, 6 A.2d 67. The declaration admitted into evidence was that of George Pontius; the school district was claiming under John Pontius; and the claim of the school district could not be affected by a declaration of George Pontius. Furthermore, it was not a declaration against interest. Manifestly, it was a self-serving declaration; a claim of title to land which George did not have possession of at the time of the declaration. The testimony should have been rejected.
The testimony of Willard Pontius was admitted on surrebuttal but that circumstance did not qualify it for admission. It has been held that admission of inadmissible evidence on one side allows the opponent to resort to similar inadmissible evidence. Sherwood v. Titman, 55 Pa. 77; but cf. Swank v. Phillips, 113 Pa. 482, 6 A. 450. That principle, however, is not applicable here. Willard Pontius' testimony was offered, so defendant urges, to refute the testimony of the secretary of the school board, who testified that neither George ...