[Sunbury,
June 21, 1824.]
SELIN and others against SNYDER and others.
IN EBBOB.
In an action of ejectment, in which the case turned upon the fairness of a sale under a decree of the Orphans’ Court, held, that the defendant could not prove, that the party under whom he claimed, declared at, and just before the sale, at which he became the purchaser, that he intended to bid but a certain sum per acre for the land; but evidence that he offered immediately after the sale, to several persons, to take them as partners in his purchase, at the same rate at which he bought, is admissible to show, that the land was not purchased below its value, and to rebut the suggestion, that he had purchased in collusion with one of the administrators of the intestate, whose property was sold.
If the court, upon being requested to charge the jury upon the effect of a particular part of a deposition, which cannot well be separated from the rest, in their instructions, take into view the whole of the deposition, it is not error.
If the charge of the court be so contradictory, that the jury must be at a loss to know what the law is, the judgment must be reversed for error.
It cannot be assigned for error in this court, that the charge of the court below, was dictated, and drawn up by the counsel of one of the parties.
The return of a writ of error to the Court of Common Pleas of Union county, showed, thas this was an ejectment for a tract of land, brought by the defendants in error, against the plaintiffs in error.
On the trial, which took place before the Associate Judges, in the absence of the President, a great mass of evidence was given, which it would be useless here to detail. It is sufficient, for the purpose of introducing the points decided to state, that the plaintiffs below-*320claimed the land in dispute as the heirs of John Snyder, deceased. It was sold as a part of his estate by order of the Orphans’ Court, and purchased by Anthony Selin, deceased, under whom the defendants claimed. The sale was conducted by John Miller, one of the administrators of John Snyder, and the great question in the cause was, whether the sale was fair ; it being alleged by the plaintiffs, that in consequence of the violence and threats of Anthony Selin, persons who attended the sale with an intention to purchase, were deterred from bidding, and thus the land went off below its value. It was contended by the plaintiffs, and evidence was given in support of the fact, that Simon Snyder, the brother of John Snyder, and one of his administrators, was a secret partner of Anthony Selin, in his purchase of the land. This was denied by the defendants, who produced evidence to sustain their denial.
In the course of the trial, the deposition of Michael Brown was read by the plaintiffs, which stated, that in the fall of the year 1790, he attended a vendue held at Sunbury, for the sale of the lands of John Snyder, and made a bid, upon which Anthony Selin became very angry, and said, “you bid because yoii want to make the land high; you do riot want it.” The deponent replied, that he did want it, if it did not come too high, and then bid again. Upon this, Selin lifted up a stick, and said, if you bid again I will knock you down. The deponent was then afraid, and said he would bid no more. He then said to Mr. Kendig^ who was married to Snyder’s widow, that he should bid for him. Kendig bid twice for the deponent, upon which Selin became so angry, that the deponent said to Kendig, you shall bid no more for me. If Selin had not behaved himself so, the deponent said, he would have given four or five hundred pounds more for the land. Many-other facts, some of them of the same tendency, were testified by the deponent, who, on his cross examination, was asked by the counsel for the defendants, whether he had ever said, that he stopt Ken-dig from bidding, not because Selin had threatened, but because he thought he would be a bad neighbour ? To this question the deponent answered, “ I did say it, and that is true.”
The defendants offered to prove, that on various occasions, within six years, Daniel Rhoad and Anthony Snyder, two of the plaintiffs, had declared, that as soon as this action was ended, if they gained it, they would proceed to recover the town itself. The court, on an objection being made to the evidence, rejected it, and sealed a bill of exceptions.
The defendants also offered to prove, that Anthony Selin had declared, that he only meant to bid eight dollars per acre, for the land of John Snyder: That this took place at, and just before the sale: That he offered to several persons, immediately after he purchased, to become partners with him, at the same rate at which he had bought, among whom, he said, was Simon Snyder, who would *321have nothing to do with it. The counsel for the plaintiffs objected to the testimony offered, except that part of it which related to the declarations and conduct of Jlnthony Selin at the sale. The court sustained the objection, and the counsel for the defendants excepted to their opinion.
Among the questions submitted by the counsel for the defendants to the court below, were the following:
1. Whether or not, it is a sufficient ground to set aside the sale to Selin, that there was no necessity to sell the premises ; that is, if the debts could have been paid otherwise, by the sale of other property, or by the rents ?
To this question the court answered: “If you believe there was no necessity for the sale, and that the law was not complied with, the sale is void.”
At another time the court said: “Whether there was or was not a necessity for the sale, is of no consequence, nor whether the debts might have been paid otherwise than by sale of the property or by rents.” ; .
2. Whether the sale to Selin ought to be set aside on the ground, that Bower would have given more, but for the reason stated in his deposition, viz: that he prevented 'Kendig from bidding further, not because Selin threatened, but because he would be a bad neighbour?
The answer of the court was as follows: ££ If the jury believe, that the conduct of Jlnthony Selin at the sale, was such as to deter others from purchasing, the sale is void, and as to w hat reason is stated in -SoMiers’deposition, the court do not know what it is.”
In this court, errors were assigned in the rejection by the Court of Common Pleas, of the evidence stated in the two bills of exceptions, and in their instructions to the jury on the two points above stated.1
On the argument, Bellas and Greenough, for the plaintiffs in error,
abandoned the first bill of exceptions. With respect to the second, they contended, that the declarations of Selin, made just before the sale, were part of the res gesta, and ought to have been, given in evidence. They were peculiarly proper, because the. plaintiffs had given in evidence his declarations, before, as well as at the sale. His offer, immediately after the sale, to admit others into a partnership with him in his purchase, was clearly evidence. This was a fact, which went to rebut the charge, that he had purchased at an under price, and also to rebut the charge of collusion with Simon Snyder, who was alleged to have been secretly concerned with Selin in the purchase. All his declarations should be taken together. 1 Phill. Ev. 76,202. Bingham v. Cabot, 3 Dali 19. Turnbull v. O’Hara, 1 Yeates, 446, 452. Drum v. The Lessee of Simpson, 6 Binn. 478. Lightner v. Wike, 4 Serg. fyBawle, 203.
The different parts of the charge of the court were contradictory to each other, , and left the jury in absolute plerplexity as to the law *322involved in the case. This court has once already reversed the judgment of the court below, in this very ease, on this ground. Lessee of Snyder v. Snyder, 6 Binn. 490. Work v. The Lessee of M‘Clay, 2Serg. § Rawle, 417. Sampson v. Sampson, 4 Serg. fy Rawle, 333.
The court, upon being requested to charge the jury, whether the matter set forth in Bowers’ deposition, viz: that he was afraid of a bad neighbour in Selin, would render the sale void, instructed them, that if Selin’s conduct deterred purchasers, the sale was void. This was no answer to the question, and not to answer it, was error:
It was also assigned for error, that the original paper containing the answers and instructions of the court to the jury, was drawn up by the counsel of the plaintiffs below, and adopted by the court in giving their instructions to the jury.
Lachells and Hepburn, for the defendants in error.
The declarations of a party are not evidence in his favour. The plaintiffs below had not given in evidence any declarations of Se~ lin, and if they had, they would only have let the defendants in to prove the whole of these declarations. The declarations offered to be proved by the defendants, had no connection with those proved by the plaintiffs. Declarations by a man against himself, at one time, cannot be rebutted, by counter declarations made at another time. Blight v. Ashley, 1 Peters Rep. 15. Wright v. Be Klyne, 1 Peters Rep. 203. M‘Peake v. Hutchinson, 5 Serg. <§• Rawle, 295. 4 Binn. 334. These declarations may have been made, with a view of taking off the effect of his conduct, in purchasing at an' under price, by means of threats, &c.
The written opinion was the only one intended by the court, although it is true, the court have since returned something more, which they say, they told the jury. This is not the case of a contradictory charge. An answer was given to a specific question proposed by the defendants’ counsel, by which the verbal answer first given, was retracted. The written answer was the only instruction the jury could regard.
The court had a right to adopt the opinion of counsel, and they have done so. The only question is, whether there be .error in that opinion?
As to Bower’s deposition, the court instructed the jury rightly. The counsel should have stated what part of the deposition they referred to, when they asked the court to give an opinion on it.
The opinion of the court was delivered by
Tilghman, C. J.
Two bills of exceptions were taken by the counsel of the defendants, to the opinion of the Court of Common Pleas, on points of evidence; besides which, several exceptions were taken to the charge of the court.
The first bill of exceptions was abandoned.
*323The second, was to the opinion of the court, in rejecting evidence offered by the defendants, of certain declarations of Anthony Selin, viz. that he had said, at, and just before the sale, “that he intended to bid but eight dollars an acre,” and that immediately after the sale, “he offered to several persons, to take them as partners in his purchase, at the same rato at which he bought.” The court decided, that no declarations of Selin, except those at the sale, should be given in evidence. It would have been very proper, to exclude all declarations before the sale; neither do I think, that any thing said by Athony Selin, as to what he intended to bid, was evidence. But his offer, after the sale, to take a partner, at the same rate at which he purchased, certainly was evidence. One of the plaintiffs’ arguments against the sale, was, that the price Was far below the value of the land. Now had this been the ease, it could hardly be supposed, that the purchaser would have given away half his profit, by taking in a partner. Neither can it be denied, that a public offer, made and not accepted, to sell one half the land, at the price at which it was struck off, is some evidence, that if was not much below its value. But this evidence was proper for another reason. The plaintiffs suggested, that Anthony Selin made the purchase, in collusion and in secret partnership with Simon Snyder, one of the administrators of his brother John. If so, the sale ought not to have stood; for although it was ostensibly conducted by John Miller, yet it might well be supposed that Simon Snyder had some influence over him. And at all events, it was against law, that one of the administrators, entrusted with the sale by the Orphans Court, should be concerned in the purchase. It was natural for the defendants therefore, to disprove that fact, and for that purpose the evidence was important; for, if Simon Snyder was a partner, Selin would have had no right to take another person in. I am of opinion, therefore, that there was error in rejecting the evidence of these offers made by Anthony Selin.
The first exception to the charge of the court was this: The court was requested to instruct the jury, whether the matter set forth in this deposition oí Michael Bower, viz. “that he was afraid of a bad neighbour in Selin,” would make the sale void. To which the court answered, “ that if Selin’s conduct deterred purchasers, the sale was void.” When we consider the whole of Bower’s deposition, this answer is not to be found fault with. Bower swore, that he attended the sale for the purpose of bidding, and would have given the sum of five hundred pounds more than the land went off at, but for the behaviour of Selin, who threatened to knock him down when he made a bid himself, and got into a passion, afterwards, when Mr. Kendig, at his request, made a bid for him. It was prudent, in the court, when charging the jury on the subject of Bowers’ testimony, to take the whole into view, and *324not confine themselves to the particular part selected by the defendants’ counsel.
The next objection to the charge, is, that it was contradictory. That the court first told the jury, “ that if they believed there was no necessity for a sale of John Snyder’s land, in order to pay his debts, &c. and that the administrators had not complied with the law, the order of sale made by the Orphans’ Court was void;” and afterwards instructed them,1 “ that it was of no consequence whether there was a necessity or not, or whether the debts might have been paid out of other funds.” With all due allowance for the associate Justices, who delivered this charge in the absence of the President, there does appear to be a contradiction which must have left the jury at a loss what to think of the law. When that is the case, there must be error. It has been so decided on several occasif'- -
The last exception to the charge is, that some material parts of it, were dictated, and drawn up, by the counsel for the plaintiffs. That is a matter with which this court has nothing to do, nor can we know, by the record, in whose handwriting the original charge was, or who dictated it. The only question for us, is, whether there be error. If the law was properly declared by the court, it is of no importance from whom they derived their information; if improperly, the party injured may have redress by writ of error. The judgment is to be reversed, and a venire de novo awarded.
Judgment reversed and a venire facias de novo awarded.