
    Gibson, Appellant, v. Rowland.
    
      Evidence — Record—Quasi admission — Case stated — Special verdict— Pleadings.
    
    Where a case is stated to procure the judgment of a court on certain facts submitted, effect is not to be given to it beyond those facts, and certainly not to compromise a title springing from a different condition of things. It is not even evidence, in a subsequent proceeding, of the facts stated, for circumstances may be conceded as existing to raise a question of law, without intending to admit them as true, and even without believing them. The same rule applies to a special verdict where the facts are assented to by both sides, and then put into the form of a jury’s finding.
    Pleadings are conclusive in their nature; but that effect is confined to' the cause in which they are made. When used in other causes as ordinary admissions, they are of course not conclusive.
    Where the quasi admissions of a vendor are not conclusive but only adverse testimony to go to the jury, subject to any explanations, a fortiori, the court cannot declare, as a matter of law, that such admissions are conclusive against the vendee.
    
      Evidence — Ejectment—Judgment—Persuasive evidence.
    
    In an action of ejectment where the court admits the evidence of a former judgment, although obtained by default, in an action between the predecessors in title of the parties to the ejectment as persuasive evidence in favor of the defendant in the ejectment, the court is not obliged to charge that such a judgment might aloné entitle the defendant to recover, and this is especially so if there is nothing to indicate that the court may not have regarded the case as a doubtful one.
    Argued May 20, 1907.
    Appeal, No. 41, April T., 1907, by plaintiff, from judgment of C. P. Warren Co., Sept. T., 1905, No. 58, on verdict for defendant in case of Thomas Gibson v. Lewis T. Rowland.
    Before Rice, P. J., Portee., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed..
    Ejectment for land in Derrfield township. Before Lindsey, P. J.
    
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    Now, gentlemen of the jury, the main dispute in this case lies right here. T^e defendant claims that at the time the deed was made from George Well Rowland to Abbie Rowland, his mother, that the deed was not delivered at that time and not delivered until some time afterward, and that it is not known exactly when it was delivered; that it wa,s not recorded until later. And at the time that George Well Rowland made the deed to Harriet Martin that the prior deed had not been recorded, and they called Mrs. Martin as a witness who testified that her brother, George Well Rowland, and her mother, Abbie Rowland, the old lady whom you saw on the. stand, came to Salamanca where she lived, and Rowland wanted to sell her the land and she agreed to take it, and they came down to Warren and had a lawyer draw up the deed, and that she brought it to the recorder’s office and it was recorded. Now Mrs. Harriet Martin testifies that she paid at that time $600 on the property. She stated that she did not remember exactly what the consideration was to be, but that she paid $600 and afterwards made another payment by timber which she says her brother got, and still another payment that she claims was made.
    The mother of Mrs. Martin is quite an old lady, eighty-three years old she said, and she says that she was with her daughter, that she came here to the recorder’s office with her where they left the deed to be recorded, and she says that she saw her daughter pay George Well Rowland, the son, a certain amount of money. She could not state the amount, it was quite a roll of bills she sáys, which she had in her hand and paid.
    Now, gentlemen of the jury, the plaintiff gives in evidence a mortgage which bears the same date as the deed, and that mortgage was for $1,000, and it recites that it is given in part payment of the purchase. And then the plaintiff gives in evidence a proceeding on that mortgage, the foreclosure on that mortgage and a defense to it, in which a special verdict was agreed upon, of the jury, and signed by the counsel for the respective parties, Clark & Noyes on one side and Brown & Ball on the other side. And the plaintiff claims that these proceedings tend to show that Mrs. Martin was not a bona fide purchaser of that land for a valuable consideration. And the counsel argues that to you, and that no money was passed or paid. Now you have the testimony of the mother that she saw a certain amount paid. You have the testimony of Mrs. Martin that she paid $600 in cash at the time of the transaction, and other payments were made afterwards, one in timber and one later. It is recited in the mortgage that the mortgage is given in part payment of the consideration. The consideration named in the deed is $1,300. The consideration named in the mortgage, or the amount named in the mortgage, is $1,000. So there would be a difference of $300 between the amount of the mortgage and the consideration named in the deed.
    [Now we say to you that if Mrs. Martin paid at the time of the execution of that deed the amount which he claims she did, she would be a bona fide purchaser for a valuable consideration. Or if she paid only $300, she would be a bona fide purchaser for a valuable consideration, if she actually paid it. So you must determine now from all the evidence whether or not she did make a payment in some amount of money there upon the execution of that deed. If she did, then the other deed, the first deed executed by George Well Rowland to his mother, would not be good as against this deed from him to his sister, Mrs. Martin; because Mrs. Martin takes it without notice, because it was not on record, and it is not shown that she had any actual notice of that former deed. So, gentlemen of the jury, you must come to your conclusion in regard to this matter.] [2]
    The plaintiff also gives in evidence the record of a judgment in an action of ejectment brought by Eugene Conklin, some years ago, against Mrs. Martin, and also the tenant of Mrs. Martin living on the property at the time. It appears from •the record that it did not come to trial. The attorney who represented the defendant withdrew his appearance and judgment was taken by default for want of an appearance. The counsel for the defendant have objected to this testimony. We have concluded to say to you that this may be taken into consideration by you as persuasive testimony. It is simply an item of evidence and may be taken into consideration by you.
    
      Plaintiff presented, these points: •
    2. Under the evidence contained in the record of the case of Sarah C. Rowland, .administratrix of George Well Rowland, deceased, against Harriet E. Martin, No. 71 of December Term, 1897, in Warren county common pleas, the said Harriet E. Martin was neither a purchaser for value nor without notice in the deed to her from George Rowland, Jr., and Sarah C. Rowland, his wife, of July 27, 1875, as against Abbie Rowland and those claiming under her, of the land described in the plaintiff’s writ. Answer: This point is refused. [1]
    3. The defendant in this case, Lewis T. Rowland, is charged with the record notice by the record in the proceedings at No. 71, December Term, 1878, in Warren county common pleas, of the scire facias upon the mortgage giyen by Harriet E. Martin to George Well Rowland, that said Harriet E. Martin from whom he derived title, was not a purchaser for value or without notice as against the deed from said George Well Rowland to Abbie Rowland under whose title the plaintiff claims. Answer: This is refused. The defendant is charged whatever the record shows, but we cannot say that said Harriet E. Martin, from whom he derived title, was not a purchaser for value or without notice, as against the deed from said George Well Rowland to Abbie Rowland, under whose title the plaintiff claims. [3] • ,
    4. The judgment in ejectment of January 23, 1892, in favor of Eugene Conklin against George Rowland, John G. Martin, and Harriet E. Martin in his ejectment suit against-them at No. 52, June Term, 1889, is persuasive evidence in favor of the plaintiff in this case for the interest, and to the extent that the land in controversy in that case, is embraced in the writ in this case, and may entitle the plaintiff to recover for the same in this suit, in connection with the fact that Harriet E. Martin made no claim in that suit of title under her deed from George Well Rowland. Answer: We answer this by saying it is persuasive evidence. [4] •
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Errors assigned were (1-4) above instructions, quoting them.
    
      February 28, 1908:
    
      D. I. Ball, with him W. E. Bice, for appellant.
    — Where a party claims as a bona fide purchaser for value against an asserted trust or fund, it i^ incumbent on him to prove affirmatively the payment of the consideration relied on, and the mere receipt of his grantor or vendor, even though it be in a deed, will not be sufficient for that purpose against third parties: Ball v. Campbell, 134 Pa. 602; Lloyd v. Lynch, 28 Pa. 419; Redfield, etc., Co. v. Dysart, 62 Pa. 62; Baum v. Tonkin, 110 Pa; 569.
    It is necessary that the party seeking to postpone another title, shall be an innocent purchaser, as well as a purchaser for value: Hoffman v. Strohecker, 7 Watts, 86; Gibbs v. Neely, 7 Watts, 305; Gilbert v. Hoffman, 2 Watts, 66; Jackson v. Summerville, 13 Pa. 359; Martin v. Gernandt, 19 Pa. 124; Beegle v. Wentz, 55 Pa. 369; Saunders v. Gould, 124 Pa. 237; Gill'v. Henry, 95 Pa. 388; Bonesteel v. Sullivan, 104 Pa. 9; Rowland v. Martin, 4 Cent. Repr. 760.
    That the judgment of Eugene Conklin v. George Rowland, John G. Martin and Harriet E. Martin, at No. 52, June Term, 1889, was persuasive evidence in favor of the plaintiff, is beyond question. .It has been so held in many cases: Shaeffer v. Kreitzer, 6 Binn. 430; Koons v. Hartman, 7 Watts, 20; Beck v. Graybill, 28 Pa. 66; Hood v. Hood, 2 Grant, 229; Soper v. Guernsey, 71 Pa. 219.
    
      William S. Clark, for appellee.
   Opinion by

Head, J.,

In this action of ejectment one George W. Rowland was the common ancestor in title of the parties. It appears from the record that he executed two separate conveyances to different persons, each, on its face, embracing the premises in dispute.' The plaintiff’s title rests on a deed made by said Rowland to his mother, Abbie Rowland, dated September 20, 1874, acknowledged July 16,1875, and recorded August 19, 1878. The defendant plants his right on a conveyance from the same grantor to his sister, Harriet E. Martin, dated, acknowledged and recorded on July 27, 1875. By divers mesne conveyances, that need not here be considered, such estates as passed by these deeds had become vested in the plaintiff and defendant respectively. The plaintiff having rested his case in chief on the paper title above indicated, the defendant answered that the deed from the common ancestor, upon which he relied, was recorded more than three years earlier than the one produced by the plaintiff; and thén undertook to prove by oral evidence, of the most direct and convincing character if the witnesses were credible, that the deed to Abbie Rowland, if ever delivered at all, was not delivered until long after the deed to Harriet Martin had been executed, delivered and recorded. Although the plaintiff was unable to offer any substantial contradiction of this evidence the court, in a charge of which no complaint is made in this respect, submitted to the jury as a question of fact, to determine whether or not, at the time of the execution, delivery and record of the deed from George Rowland to Harriet Martin, the alleged earlier deed to Abbie Rowland, had ever been delivered. Their verdict must be taken as an answer in the negative and it leaves the plaintiff’s title without any foundation on which it can rest. Had he been able to establish that the deed, upon which he must rely, was in existence, a conveyance duly executed and delivered, although unrecorded, at the time of the sale and conveyance to Harriet Martin, then he would have had a basic fact from which he could proceed to prove, if able to do so, that the later vendee had actual notice of the earlier unrecorded deed; or such circumstances in regard to the possession of the premises as would have visited her with constructive notice of the outstanding title; or that by reason of fraud, etc., she was not entitled to the protection of the recording acts as against the earlier purchaser whose deed was not recorded. But with the existence of an earlier deed removed, by the verdict, from the realm of fact to that of allegation merely, all these lines of counter attack were made useless and ineffectual. If, therefore, the plaintiff’s case was fatally damaged by the introduction of evidence which the court could not reject and the jury felt bound to believe, it is difficult to see how the action of the court in the matters assigned for error, to which we will now advert, could have been substantially harmful.

By way of rebuttal the plaintiff offered the record of a mortgage purporting to secure to her vendor a portion of the purchase money recited in the deed to Harriet Martin. This mortgage was dated the same day as the deed, was drawn to be executed by her and her husband, was signed and acknowledged by her alone — and finally reached the record about a year after its date. After the death of George Rowland a sci. fa. was issued thereon by his administratrix. To this a plea was filed signed and sworn to by Mrs. Martin, talcing defense on the grounds that she was a married woman and her husband had not joined; that the mortgage was not her deed and that she owed nothing. Some time later certain facts seem to have been agreed on by counsel and were embodied in a special verdict. There is nothing in any record before us to indicate that Mrs. Martin had any actual knowledge of that proceeding. The substance of that verdict as rendered was that the conveyance from George Rowland to Harriet Martin was without any consideration and made to put his property “out of his hands and beyond the grasp” of certain persons with whom he had become involved. If the plaintiff, seeking to recover on a mortgage, was thus willing to be stated out of court, it may be surmised the mortgagor’s counsel would not long hesitate to allow her to rest her claim on such a foundation. The result was a judgment for the defendant which, on appeal, was affirmed. In the court below this record was received in evidence as an admission by Mrs. Martin tending to contradict her testimony, delivered from the stand, that she was a bona fide purchaser and had paid the full consideration recited in the deed. By their second point the learned counsel for the plaintiff asked the trial court to declare, as matter of law, that the defendant was concluded by that record, and that because of it “ Harriet E. Martin was neither a purchaser for value nor without notice .... as against Abbie Rowland and those claiming under her.” The refusal of this point is the first error assigned and the one perhaps most pressed. To have affirmed the point would, in our judgment, have been serious error. We have been referred to no authority that would warrant such a ruling. On the contrary, there are rhany which declare that, if admissible at all in a subsequent action between different parties, such a record can be used only as a quasi-admission, which is not conclusive but open to explanation by the party to be affected thereby.

In Hart’s Appeal, 8 Pa. 32, Mr. Justice Bell thus spoke of a case stated: “Where a case is stated to procure the judgment of a court on certain facts submitted, effect is not to be given to it beyond those facts, and certainly not to compromise a title springing from a different condition of things. It is not even evidence, in a subsequent proceeding, of the facts stated; for circumstances may be conceded as existing to raise a question of law, without intending to admit them as true, and even without believing them.” What substantial difference can be pointed out between a formal case stated, and a special verdict where the facts are assented to by both sides and then put into the form of a jury’s finding, it is difficult to see. In McLughan v. Bovard, 4 Watts, 308, Gibson, C. J., in discussing this subject, says: “Nor can there be a difference in principle between a verdict and a case stated; for the legal effect must be the same, whether the parties undertake to say the truth for themselves, or put themselves on a jury to say it for them.” In Darlington v. Gray, 5 Whart. 487, Rogers, J., says: “The very object of a case stated, as of a special verdict, is to end the controversy by a judgment in chief on certain ascertained points.” But even if we are not to regard this special verdict as properly classified with a case stated, but rather with the pleadings, then the true effect of their use in a subsequent action is thus stated by Professor Wigmore, vol. II, sec. 1066: “The use here discussed, of informal or quasi-admissions, has nothing to do with the use of pleadings as solemn or judicial admissions (ante, sec. 1057). The latter are conclusive in their nature; but that effect is confined to the cause in which they are made. When used in other causes as ordinary admissions, they are of course not conclusive (on the principle of sec. 1058, ante);” etc. So in 1 Greenl. Ev., sec. 537, cited in Truby v. Seybert, 12 Pa. 101, we find it stated: “So, also, it (a record) is admissible against one of the parties in favor of a stranger, as containing a solemn admission or judicial declaration by such party in regard to any particular fact. But, in these instances, it is received not as an adjudication conclusively establishing the fact, but as the declaration or admission of the party himself, that the fact is so.”

The conclusion we reach, from an examination of these authorities, is that, in permitting the special verdict, agreed on in the action of sci. fa. sur mortgage, to be laid before the jury in the present case, the learned trial court ruled as favorably for the plaintiff as the law would permit him to do. The first assignment is overruled.'

It follows, we think, from what we have already said, that the portion of the charge quoted in the second assignment and the answer of the court to the plaintiff’s third point (third assignment) correctly stated the law. If in an action by the present plaintiff against Harriet Martin herself, her quasi-admissions, found in the special verdict, would not have been conclusive but only adverse testimony to go to the jury subject to any explanations he could offer, a fortiori the court could not declare, as matter of law, that the present defendant, her vendee, was concluded. Besides, with the finding that the deed from Rowland to Harriet Martin was first in point of time, it would follow as a legal conclusion, that she, even if a volunteer, took a good title not only as against her vendor, but against all the world except the creditors of the latter who would suffer by the fraud, and neither this plaintiff nor any of his predecessors in title appear to have been in that category. Neither of these assignments can be sustained.

Nor can we find anything to criticise in the answer of the court to the plaintiff’s fourth point, the subject of the only remaining assignment. The court admitted the evidence of a former judgment, although obtained by default, in an action between the predecessors in title of the present parties, as persuasive evidence in favor of the present defendant. This is precisely the effect that the law, prior to the act of 1901, had, from the earliest times, attached to such a judgment. But the court was pressed to say that such judgment, under the facts in evidence, might alone entitle the defendant to recover. We do not think the learned court was obliged so to charge. It is true that in Koons v. Hartman, 7 Watts, 20, Kennedy, J., in deciding that such a judgment was admissible as persuasive evidence, added “and in a case of doubtful cast from all the other evidence, it ought to be considered sufficient, by the jury to turn the scale in its favor.” The point as presented was not couched in the careful language quoted, and the learned trial court may not have regarded the case as a doubtful one. But looking at the point decided in the many cases on the subject, we think it clear enough that the answer to the point followed the plain track marked out by the decisions. The fourth assignment is dismissed.

Judgment affirmed.  