Lewars v. Weaver

Citations

• 121 Pa. 268
• 15 A. 514
• 1888 Pa. LEXIS 667

Syllabus

<p>1. Where a cause is submitted for trial and decision to the court without a jury, under the act of April 22, 1874, P. L. 109, the decision must state the facts found as the substantial and controlling facts of the case, separately and distinctly and unmingled with the conclusions of law, otherwise it will be held to be fatally defective.</p> <p>2. If, in such a submission, relevant testimony has been offered by one party and admitted without objection by the opposite party, or by the witness, it is error for the court after the case has closed on the evidence to reject the testimony upon the ground that its subject matter was a privileged communication.</p> <p>3. That a notary public prepared a mortgage, and took the acknowledgment thereof and afterwards delivered it to the mortgagee, does not of itself so constitute him the agent of the mortgagee as to make the latter responsible for fraud or imposition in procuring the execution of the mortgage in his absence.</p> <p>4. When the certificate of the acknowledgment of a mortgage is impeached for falsity in its averments or fraud in procuring the execution, evidence of the acts and declarations of the participants, at the time of the execution and acknowledgment, is relevant and admissible as of the res gestee, whether the mortgagee be present or absent.</p> <p>5. If the consideration of a married woman’s mortgage has passed before the mortgage is given, so that the mortgagee has not parted with his money upon the faith of the mortgage, the certificate of acknowledgment is not conclusive, as to the mortgagee, but may be impeached by parol testimony.</p> <p>6. But, in any such case, the evidence, impeaching the certificate, should be of the clearest and most satisfactory character, above suspicion, consistent with itself, intrinsically probable, and so persuasive that the judicial mind can rest upon it with the conviction that the ends of justice will he subserved by giving it effect as the basis of a decree.</p>