146 A. 94 | Pa. | 1929
Argued February 5, 1929. Martin Burke was the owner of valuable real estate in the City of Pittsburgh, subject to certain liens. Executions were issued and the properties sold in the fall of 1914 to one Callahan. Efforts were made to preserve the interests of Martin, and an arrangement was perfected through Thomas Burke, Jr., a nephew and employee, with one Kaufmann, by which the ownership of the sheriff's vendee became vested in the latter, subject to an agreement by the terms of which the title was to be retransferred upon the performance of certain conditions. As a result of the understanding reached, Callahan deeded one tract directly to Kaufmann, and two tracts to Thomas, who in turn conveyed to the same person on February 15, 1915. The cash consideration of $22,500 *417 required was advanced by Kaufmann, who drew the necessary checks to Thomas, endorsed in turn to Callahan, and the former paid in addition $137.45, which Kaufmann loaned him at the time, though subsequently reimbursed.
By the terms of the contract it was provided that if the sum loaned by Kaufmann, with compound interest, plus a bonus of $4,000 for his service, be repaid within two and one-half years, — a time subsequently extended by the parties, — from rentals, or the purchase price of any of the buildings deeded to him, a reconveyance should be made to Thomas Burke, Jr., who is the complainant in the present proceeding. The arrangement to carry through the transaction in the name of Thomas was made because of the then financial difficulties in which Martin found himself, his ownership having been divested by the sheriff's sale for a price much less than the real worth. In March, 1915, Martin was declared a bankrupt, and in the schedule filed the land sold by the sheriff was referred to, but stated as of no value, since the record title had passed to the sheriff's vendee, and through him to Kaufmann. Later, the interest in the license and liquor business, conducted in one of the properties here involved, was purchased from the receiver by Thomas.
From 1915 to 1919 the buildings were handled by the Kaufmann Realty Company, of which Kaufmann and his brother were at the time joint owners, but thereafter the former acquired the entire interest. The real estate firm collected the rents, and paid maintenance charges, including taxes, until a sale of one of the houses was effected. As a result a fund came into Kaufmann's hands in excess of the amount he had agreed to accept under the terms of the Burke agreement, which required, in such case, a reconveyance. On October 1, 1919, the holder of the legal title, and his wife, executed a deed for the remaining land, now in question, though the same was not acknowledged until the 22d. An adjustment *418
was then made in the presence of Martin and Thomas Burke, Jr., and a check for $11,395.03, representing the balance then due by Kaufmann was made out to the order of Thomas, immediately endorsed to Martin, who deposited it to his individual account. The deed for the unsold properties was at the time signed, sealed and turned over. It was later recorded, and a legal presumption of actual delivery to the grantee named therein followed: Kohn v. Burke,
On January 14, 1923, Martin Burke was murdered. The deed for the land, in which he was named as grantee, was found in his safe with other personal papers, and shortly thereafter recorded. In the same month Thomas applied for a license to conduct a liquor business in the building, swearing the owner was Martin Burke. It was not until May 16, 1927, that he asserted the title to be in himself, and filed this bill making such claim, in which the heirs-at-law of Martin, except complainant's mother, brothers and sisters, who were joined with him as plaintiffs in the proceeding, were named as defendants. His demand was based on the allegation that the deed from Kaufmann had in fact been made to him as grantee, and that his uncle surreptitiously secured possession of the paper, thereafter changing the name of the grantee so as to read "Martin." The court was asked to direct that the conveyance be reformed to accord with the true facts, and defendants be restrained from asserting any rights in the property. Answers were filed denying the above averments, and the case *419 was heard by a chancellor, who carefully considered all of the testimony submitted, later entering a decree nisi dismissing the bill. Exceptions filed were overruled by the court in banc, and from the final order this appeal was taken. The many assignments of error submitted here are directed to the admission of testimony to show the circumstances attending the parties, and the credibility of the witnesses called by plaintiff, and the findings of fact based thereon, as well as to the conclusions of law reached.
We deem it unnecessary to consider the complaints separately and in detail, as an examination of the record shows, beyond question, that a proper determination was reached. It may first be observed that the claim of plaintiff was based on alleged fraud of Martin Burke in causing the erasure of the name of Thomas as grantee in the Kaufmann deed, and substituting his own therefor. Where fraudulent conduct is alleged, as here set forth, the door is opened wide for the production of evidence to determine the true situation, and testimony is freely admitted explanatory of the transaction: Smith v. Smith,
The first of these witnesses referred to testified that the name of Thomas Burke was written in the deed when executed, and handed to one or the other of the parties in the presence of both. He saw the check, then made out to Thomas, endorsed to Martin, and thereafter carried the rental account on the books of his company, as shown by an annotation thereon, for the benefit of the latter, and, with the exception of one check, drew all, until the death of Martin, to his order. No suggestion was made by him until then that Martin was not the true owner, and this assertion first appears in a letter to the administrator suggesting that his estate was not entitled to the rents, though he had been paying them regularly to the decedent until the time of his death. A careful examination of the entire evidence of Kaufmann, who, amongst other things, attempted to conceal facts appearing in his office records detrimental to plaintiff, as well as knowledge that he had received a bonus of $4,000 for carrying through the transaction, shows warrant for disbelief of his present statement as to the intended grantee of the property reconveyed.
With like reason the evidence of Weil was deemed untrustworthy. He had acted as attorney for both parties. His statement that Martin showed him the deed on the date of its execution and delivery, made out to Thomas, and asked him to alter it, which he refused, and that the same paper with the change made was then brought back to him, and kept with this knowledge in his safe for three years, though he was then acting as attorney for Thomas also, and was finally delivered to the decedent two days before his death, amongst whose papers it was found by the administrator, was, under the circumstances disclosed, properly rejected as incredible. As affecting the weight to be given his testimony, it was *421
proper for the court to consider that he had been guilty of such gross misconduct as to cause his disbarment by the Orphans' Court and Common Pleas of Allegheny County: Weiss v. London G. A. Co.,
Evidence was offered by defendants to show that the deed was in Martin's possession at his house in 1920, and at that time his name appeared therein as grantee. His ownership of the property was recognized by Kaufmann until his death by collecting and paying the rents to him, and was asserted under oath in a judicial proceeding by Thomas himself when he applied for a liquor license in 1923, then setting forth in his petition that Martin was the owner. Indeed he never asserted the contrary until more than four years after the death of his uncle, when he filed this bill. The deed itself did show an erasure of the name as first typed, and the retyping substituting the word "Martin," but the court was plainly warranted in finding this was done by the stenographer when the paper was written and before removing it from the machine, and its actual execution and delivery by the grantors. This conclusion was justified by the testimony of the experts called, and is the *422
natural conclusion to be drawn from the evidence produced. Though the burden is upon one who produces an instrument, containing a material alteration which is to his benefit, to explain, the mere change in the writing does not make it inadmissible in the condition as presented: Davis v. Cauffiel,
"When we look at a written instrument containing an interlineation or erasure, without reference to contested rights, the natural and fair presumption doubtless is that the alteration was made before signature, because, if altered after execution, it would be forgery, which is never to be presumed. [Even when the question is in dispute] if the similarity of ink and handwriting, or the conduct of the parties, or other facts proved, shall persuade a jury that it was so made, the instrument is relieved from suspicion": Jordan v. Stewart,
Without referring specifically to the forty-one assignments of error, all are overruled.
The decree is affirmed at the cost of appellant.
