Lesher's Lessee v. Levan, 2 Dall. 96 (Pa. 1786)

In this cause articles of agreement, for the sale of a house and lot in Germantown, were offered in evidence as a deed, under the following circumstances. The articles purported to be for the sale of a house and five acres of land, for the consideration of £1200, payable, £700 in cash, and remainder in bonds. Daniel Longsdorff, who was produced as the witness to the execution of the articles, stated that he was called into a room by Stawaker (the contractor to sell) to witness the execution of the bonds; that when he came in, the papers were lying on a table before Lesher (the contractor to purchase) and Lesher desired him at to sign as a witness: That he did not actually fee Stawaker sign, seal, or deliver the papers, which he supposed to have been regularly executed before he was called in; but that he saw the money paid, and he knew the hand-writing to be Stawaker's: And that possession of the premises was afterwards, in pursuance of the agreement, delivered to one Harb, of whom Stawaker rented a room in the house in question, for £8.

The Counsel for the defendant opposed the admission of the articles of agreement, contending that there was no proof of the sealing and d livering, which are essential to a deed.

But by the Court:—There is sufficient proof, that the instrument was signed by Stawaker; and, therefore, we shall let it go to the Jury; who will determine, for themselves, whether that, and the other circumstances in the case, are satisfactory evidence of sealing and delivery.

Rush, Justice:—I differ in opinion from the rest of the Court. I think that before the instrument is read, sealing and delivering should be proved. If, indeed, the witnesses were proved to be dead, or absent beyond the reach of the process of the Court, the proof of their hand-writing would be admitted; or, if that was not practicable, proof of the hand-writing of the obligor might be satisfactory. But these circumstances do not occur on the present occasion; and as far as the testimony of Longsdorff goes, it is calculated to induce a belief that there was, in fact, no sealing and delivery of the instrument. It is not, therefore, proved as a deed; and, in my opinion, it ought not to be left to the Jury as a memorandum.

A bill of exceptions was taken to the opinion of the Court, but never prosecuted.