
    Christie v. Pittsburg, Harmony, Butler & New Castle Railway Company.
    
      Evidence — Declaration of trust — Proof of execution.
    
    1. In an action of trespass against a railroad company for occupation of land by a railway track, a declaration of trust showing the interest of certain parties who had intervened as plaintiffs, may be proved by the testimony of the surviving trustee without proof by the subscribing witness.
    2. In such a case the identity of the parties beneficially interested in the trust might have been established by parol, and as that matter was incidental merely to the issue between the parties, the rule as to the production of the subscribing witness would not seem to apply .even at common law.
    
      Evidence — Offer—Harmless error.
    
    3. A refusal of offers in evidence is harmless error even if the offers are competent, where the witness offered testifies at a later stage of the trial to the matters covered in the offers which were rejected.
    4. The trial judge cannot be convicted of error in rejecting an offer of testimony, where the offer does not contain such a definite proposal of testimony as will enable the court to determine whether it was admissible or not.
    Argued May 15, 1912.
    Appeal, No. 154, April T., 1912, by defendant, from judgment of C. P. Lawrence Co., June T., 1909, No. 36, on verdict for plaintiffs in case of Thomas G. Christie, sole surviving Trustee of the Table Rock Stone & Manufacturing Company, and Thomas G. Christie, C. G. Christie and Joseph L. Kirk, being the Table Rock Stone and Manufacturing Company, v. Pitts-burg, Harmony, Butler & New Castle Railway Company.
    
      Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Trespass to recover damages for the occupation of land by a railroad track. Before Porter, P. J.
    From the record it appeared that suit was originally brought in the name of Thomas G. Christie, sole and surviving trustee of the Table Rock Stone & Manufacturing Company. Subsequently the court allowed the record to be amended so as to include as parties plaintiff Thomas G. Christie, C. G. Christie and Joseph L. Kirk, “being the Table Rock Stone & Manufacturing Company.”
    At the trial plaintiff produced in evidence a deed from Marshall Brown to Thomas G. Christie and E. M. Robinson, trustees of the Table Rock Stone & Manufacturing Company. Plaintiff then offered in evidence a declaration of trust bj' Thomas G. Christie and G. M. Robinson.
    Objected to by counsel for defendant and the purposes asked. Offered for the purpose of showing the persons for whom the trustees named in deed from Brown to Christie and Robinson, as trustees of Table Rock Stone & Manufacturing Company, held the title in this case.
    Defendant’s counsel object to the admission of this paper in evidence, first,, because the execution of it is not proven, it being attested by an attesting witness who has not been called, and the best proof of its execution not having been offered.
    Objected to further that it is not set up in the abstract of title and defendant had no notice of it and it is not recited nor averred in the abstract of title as any part of the plaintiff’s chain of title and is therefore incompetent, irrelevant and immaterial.
    Mr. Aiken: “ Q. Did you know H. T. Hanna? A. I did. Q. Where is he, if you know? A. I don’t know; I have been told in Pittsburg, but I don’t know where, though. Q. His whereabouts to you are unknown? A. Yes, sir.”
    Judge Martin: “Q. You have been told he was in Pittsburg? A. I was told he was in Pittsburg. Q. You made no effort to find him, did you? A. No, sir. Q. Had no subpoena out for him, did you? A. I said I had made no personal search for him. I was told he was in Pitts-burg, but I don’t know it to be a fact. Q. You had no subpoena out for him in this case? A. No, sir.”
    The Court: I think we will now admit the paper offered, exhibit No. 1 plaintiff, and seal an exception for the defendant.
    Paper read in evidence by Mr. Aiken.
    “This indenture made the twenty-second day of March, A. n. 1886, by Thomas G. Christie and E. M. Robinson, Trustees of the Table Rock Stone & Manufacturing Company.
    “Witnesseth: Whereas, Marshall Brown and Annie W., his wife, by deed of even date herewith, conveyed to Thomas G. Christie and E. M. Robinson, Trustees of the ‘Table Rock Stone & Manufacturing Company, three (3) tracts of land situate in Lawrence County and State of Pennsylvania, the first tract containing about 6.49 acres, the second tract containing 1.6 acres and the third tract containing 14 acres and 23 perches, strict measure. Now, this Declaration of Trust Witnesseth: That the said tracts of land in said deed described were conveyed to and the title is held by us in trust for the sole use and benefit of the said ‘Table Rock Stone & Manufacturing Company’ composed of H. D. Campbell, J. L. Kirk, C. G. Christie- and ourselves, the said Thomas G. Christie and E. M. Robinson. The interest, property and estate of said parties in said company and the three tracts of land being as follows: H. D. Campbell one-fourth, J. L. Kirk one-fourth, E. M. Robinson one-fourth, Thomas G. Christie one-eighth and C. G. Christie one-eighth.
    “In witness whereof the said Thomas G. Christie and E. M. Robinson have hereunto set their hands and seals the day and year aforesaid.
    “Sealed and delivered in presence of H. T. Hanna.
    “Thomas G. Christie, (Seal.)
    “E. M. Robinson, (Seal.)”
    
      “ State of Pennsylvania,
    “ County of Allegheny.
    
      “ City of Allegheny.
    "On this 22d day of April, a. d. 1886, before me, a Notary Pubhc of said State, County and City, came the above named Thomas G. Christie and E. M. Robinson, Trustees, and acknowledged the foregoing Indenture to be their act and deed, desiring the same to be recorded as such.
    "Witness my hand and Notarial Seal the day and year aforesaid.
    "H. T. Hanna,
    "(Notary Seal.), Notary Public.” [3]
    Defendant’s counsel proposed to inquire of the witness, James Main, as to what his father, who is now dead and who had lived in that locality for many years, stated or told him relative to the location of this line and the line marks indicating or marking the line.
    Objected to as incompetent, irrelevant and immaterial.
    The Court: We will sustain the objection and seal an exception for the defendant. [8]
    "Q. State whether or not these trees were recognized as line trees? A. Well, now, Johnson has never had any dispute about them nor Mr. Burns, and-”
    Objected to and asked to be stricken out.
    The Court: That would be a conclusion. We will strike out the question and answer. The witness can give his description of the trees and the occupancy of the land as he saw him there, and an exception is sealed for defendant. [9]
    “Q. Was it recognized as a line fence by the parties? A. Yes, sir. It was.”
    Objected to as a conclusion.
    The Court: We will sustain the objection as to whether or not it was recognized as a line fence, and an exception sealed for defendant. [10]
    Verdict and judgment for plaintiff for $1,400. Defendant appealed.
    
      
      Errors assigned were (3, 8, 9, 10) rulings on evidence, quoting the bill of exceptions.
    
      J. Norman Martin, with him A. Martin Graham, for appellant.
    — Before a deed is given in evidence it must be proven on oath by the subscribing witness, if there be one and he is living: Sigfried v. Levan, 6 S. & R. 308; Charles v. Scott, 1 S. & R. 294; January v. Goodman, 1 Dali. 208; Diehl v. Emig, 65 Pa. 320; Tams v. Hitner, 9 Pa. 441; Powers v. McFerran, 2 S. & R. 44; Gardner v. Grove, 10 S. & R. 137; Hautz v. Rough, 2 S. & R. 349; Conrad v. Farrow, 5 Watts, 536; North Penn Iron Co. v. International Lithoid Co., 217 Pa. 538.
    
      Robert K. Aiken, with him C. G. Christie and J. Clyde Gilfillan for appellee.
    — The declaration of trust and the deed from Mary D. Campbell et al. were offered for the further purpose of showing the persons owning the land and for whom the trustees of the Table Rock Stone and Manufacturing Company held title. This was in support of the allegations of the petition to amend and intervene which alleged that Thomas G. Christie, C. G. Christie and Joseph L. Kirk were all of the parties interested in said land and were the Table Rock Stone and Manufacturing Company. These deeds further showed the interest which the respective parties had in the lands and that the same were held by them as tenants in common. The petition to intervene and the adding of additional plaintiffs was made about a month after the plaintiff’s abstract of title had been filed, and it was certainly competent to support the allegations of the petition to amend by offering these deeds in evidence. Defendant’s counsel also objected because the execution of the declaration of trust had not been proven by the attesting witness but its execution was proven by the testimony of Thomas G. Christie, one of the persons executing the declaration of trust, which certainly was the best way of proving the same.
    
      July 18, 1912:
   Opinion by

Henderson, J.,

All of the assignments of error except the third, eighth, ninth and tenth were withdrawn at the argument and our inquiry is therefore within a small compass. The action was trespass against the defendant for occupying part of the plaintiffs’ land in the construction of a railway track, and the material inquiry related to the location of the “Grimm” line which was the east line of the plaintiffs’ property. The plaintiffs' were the holders of the legal title as trustees and certain others who were the equitable owners under the trust. The evidence to which the third assignment relates was a declaration of trust made by the surviving trustee in favor of the equitable owners. The obj ection to this was that it was not proved by the attesting witness. It was, however, proved by the surviving trustee and that was sufficient for the purposes of the case. The identity of the parties beneficially interested in the trust might have been established by parol, and as that matter was incidental merely to the issue between the parties we think the rule as to the production of the subscribing witness would not apply even at common law. The offers rej ected as set forth in the eighth, ninth and tenth assignments did the defendant no harm, for the same witness testified at a little later stage in the examination that the fensewas a linefence and that itwas agreed to on both sides. The appellant had the benefit, therefore, of all that was proposed to be proved and was not prejudiced by the action of the court if it be conceded that the offers refused were competent. As to the eighth it may be added also that the offer did not contain such a definite proposal of testimony as would enable the court to determine whether it was admissible or not. What the father of the witness said on the subject might or not be competent depending on what his declaration actually was, and the offer does not inform us on that subject. On the point in controversy the jury found for the plaintiff on clearly competent evidence, and we are not persuaded that any error was committed to the prejudice of the defendant.

The judgment is affirmed.  