168 Pa. 81 | Pa. | 1895
Opinion by
The counsel of the parties made an agreement which is printed in the Appendix, to the effect that the appellant need not print any more of the testimony than such as related “ to the transaction between John Ease and H. Stone together with the charge of the court and so much of the record evidence and exhibits as the appellant may see proper to print in his paper book.” It is stated in the agreement by way of recital that, “ the only question raised by the assignments of error is to what extent H. Stone is entitled to protection as an innocent purchaser without notice of any equities in the plaintiff, A. E. Burr, absolutely or only to the extent of the money actually paid before notice.”
If the case depended only upon the solution of that question an agreement such as the foregoing might not be subject to
In 1879 and prior thereto the plaintiff was the owner of the surface of a small tract of land containing about twenty-five acres near Carbondale in Lackawanna county. It was incumbered with two mortgages amounting together to 13,500 and a judgment in favor of John Kase, one of the defendants. The plaintiff alleges that prior to the sheriff’s sale of the property, which occurred in May, 1879, he made a written agreement with Kase whereby it was agreed that the, property should be sold at sheriff’s sale under Kase’s judgment for $500, and that at the sale Kase should buy ,the property and thereafter hold it until he was repaid all his expenditure on account of the property, and when he was fully repaid he should reconvey the property to the plaintiff. The plaintiff’s abstract of title contains no reference to this agreement, but in an amendment to the abstract the agreement is alleged substantially as above stated, and at the end of the amendment the plaintiff’s claim is stated as follows: “Thatthe sheriff’s deed and the written agreement between A. E. Burr and John Kase formed part and parcel of the same transaction, and as the agreement was not recorded, the whole constituted an unrecorded mortgage, and was security for the said debt of $3,500.”
Looking now at the claim that Kase held title only as a mortgagee under an unrecorded defeasance, it will .be at once perceived, that the first and indispensable requirement is that there was a written agreement duly made and executed by the parties containing the terms of the alleged contract upon which the property was sold. . The sale by the sheriff was made on May 3, 1879, and on the 8th day of May following the sheriff’s deed to Kase was acknowledged in open court and entered in the prothonotary’s office in sheriff’s deed book. It is an undisputed fact that Kase went into possession of the premises immediately after the sale and continued therein until 1886, when he sold the property to Stone, for $2,250, and Stone took possession at once and has occupied the premises ever since. This, action of ejectment was brought June 1, 1891, twelve years after the sheriff’s sale to Kase. On the trial the learned court below submitted to the jury two questions of fact, to wit, whether there ever was such an agreement between Burr and Kase as was claimed by Burr, and whether Stone was an innocent purchaser for value without notice. The jury found a verdict for the defendant, and presumably, they did not sustain the contention of the plaintiff upon either fact, but as it is possible they may have found for the defendant Stone because he was an innocent purchaser for value without notice, it cannot be positively assumed that they found that the agree
This makes it necessary for us to review the testimony in order to learn whether we, sitting as chancellors, could determine whether the whole evidence was sufficient to change the absolute deed from the sheriff into a mortgage. The plaintiff stakes his case upon the allegation that there was an agreement in writing which established the defeasance. On the trial he did not produce any writing but said he had lost it and could not find it after diligent search. He therefore undertook to prove its contents by parol. He produced no witnesses but himself to testify to the contents, and this is his testimony on that subject: “Q. Now, Doctor, without trying to give us the exact language, I wish you would tell us the substance of this paper. A. It set forth the agreement entered into between myself and Mr. Kase in regard to this property, setting forth the facts. Q. What facts did it set forth? A. The fact that I owed him so much on this property and that all he wanted, all he ever claimed to want, was simply his money out of it, and when that was paid that the property should be reconveyed to me. Q. What if anything was said in the paper about a sheriff’s sale ? A. It stated the property was to go to him for the present. I forget just how it was worded. Q. I mean the sub stance of it. A. I cannot repeat it verbatim. I can only repeat the substance of the paper, what it was got up for. Q. Just tell the substance of it again. A. That when he received his money what was due him that was all he wanted. Q. Did the paper state what was due him ? A. I think it did or about the amount. Q. Do you know what amount was stated in the paper as being due him ? A. I think it was the amount of the mortgage. Q. Which was how much? A. $3,500.”
This was his testimony in chief. On cross-examination he was asked: “ Q. Now will you again state as near as you can what that alleged paper contained ? A. Well, as I stated before, it contained an agreement between myself and Mr. Kase in regard to this property, agreed to let him have it on this note which he had paid to save costs to myself ; that I was going to have the benefit of it. Q. Was this all in the paper? A. I don’t know as it was; that was our agreement. Q. I am askr
The foregoing is practically the whole of plaintiff’s testimony as to the contents of the alleged agreement. When it is considered that the effort of the plaintiff is to take away the title to land held by virtue of a sheriff’s deed conveying an absolute title, by means of a lost written instrument, the only
As an illustration of the strictness required in proving the contents of lost instruments the following cases are instructive.
In Dennis v. Barber, 6 S. & R. 420, an important letter was lost. A witness was offered who had made an extract or copy from it, but not of the whole, and he offered to testify that the copy or extract was all of the letter that related to the business
In McCredy v. The Schuylkill Nav. Co., 3 Whart. 424, we held that evidence of the contents of an instrument alleged to have been lost cannot be given without previous proof of its due execution which includes proof of its delivery; and where a witness called to prove the former existence of an instrument, testified that it had been put into the hands of A as an escrow, and A on his examination testified that he could not recollect on what occasion, or with certainty, to whom it was given up, and that he should not have given it up without the consent of both parties, it was held, that evidence of the contents of the instrument was properly rejected.
In Kerns v. Swope, 2 Watts, 75, Gibson, C. J., said, “ The rule of law which requires the best evidence to be produced is nowhere more rigidly enforced than in proving the contents of a lost deed. There are but two ways of doing this in the circumstances of the present case. Before a copy can go to the jury it must be proved to be such by one who compared it with the original; and it is even then inadmissible if there be a counterpart.”
We hold that the proof of contents in this case was altogether short of the requirements of the law, and that it cannot be considered as sufficient to establish any right of recovery in the plaintiff as upon an agreement in writing. The plaintiff admitted on the trial that he had made no search for the paper within three years before the trial, and, in our opinion, the offered proof of contents should not have been received for that reason.
But there is a still more important objection to the validity of the claim, and that is the want of sufficient proof that there ever was such an agreement. The plaintiff testified that the agreement was written by an alderman named J. G. Thompson living in Carbondale, and that he attested it as a witness and took the acknowledgment of the parties to it. The alderman was called as a witness by the plaintiff, but he entirely failed to establish either the preparation or the execution of such a paper. After stating that he knew both Dr. Burr and John Kase he was asked: “ Q. Did you do any business for them about 1879? A. Yes. Q. Do you remember drawing any paper between them relating to the cottage property in 1879 in the spring? A. Well, I cannot recollect anything very particular about it. I have some recollection of drawing some paper, a faint recollection of drawing some paper for Mr. Kase and Mr. Burr. Q. Can you give us the contents of that paper at this time? A. I cannot.” The remainder of his testimony was no improvement upon the foregoing. No other testimony was offered by the plaintiff as to the execution of any written agreement between Burr and Kase.
His subsequent testimony made no change in the foregoing. So far then as the making of an agreement in writing is concerned the case stands upon the testimony of Burr on the one side and Kase on the other. There was some attempt made on the part of the plaintiff, as is usual in this class of litigations, to show admissions in conversations by Kase of having made some kind of agreement with Burr to reeonvey. Mrs. Catharine Lee was one of these witnesses, and she said: “I heard Mr. Kase and my husband talking about the cottage property at that time. Mr. Kase as I understood it wanted to get his share out of the property. It is so long ago that I can hardly remember the conversation fully. That is all he wauted, to get his share out of it, or something like that.” As this would be entirely consistent with the idea that Kase wanted to get his money back by a sale of the property as his own, and as nothing was said about any reconveyance of the property to Burr, the testimony was absolutely useless in support of the plaintiff’s claim.
M. B. Simrell, a witness for the plaintiff, testified to a conversation with Kase which occurred in 1879, fifteen years before the time when he testified. After saying that he was at Kase’s store and was talking with Kase about the property he was asked: “ Q. Tell us what the conversation was ? A. I asked him if it was going to take all Mr. Burr had to satisfy
The discrepancy between the testimony of this witness in chief, and on cross-examination, is enough to condemn it for any purpose in a case of this kind, where the whole fate of the case depends upon clear, precise and indubitable testimony to the very matter in controversy, without considering its lack of detail as to most essential matters, or the fact that the defendant positively denied the whole conversation. On his examination in chief he simply said that Kase said, “ when I get my money out I am satisfied and shall return the property to him.” This of course means no more than a simple declaration to a stranger of an intention that when he got his money out he should return the property to Burr. He does not say that he had made any contract to reconvey but simply that he would reconvey. In other words he had the intention to reconvey, which of course he might change at any moment. Dr. Burr was not present and therefore it was not in any degree the expression of a contract to reeonvey. Then the witness, in reply to the next question, said, “He has got a paper to protect him.” What kind of a paper ? The witness does not say. Was it a bond of indemnity, or an agreement to hold the property in trust and ultimateljr, if either Burr should pay the debt he owed Kase, or Kase should recoup himself out of the proceeds of the property, that would protect him? And what money was Kase to get out of the property? Was it all
The only other witness to conversations is Philo Lee, and this is his testimony: “ I and Mr. Kase got talking, and I asked Mr. Kase how he and Mr. Burr was getting along; he said he thought they would get along all right, that all he wanted, he says, was to get what belonged to him, if he gets that he would be perfectly satisfied.” There is nothing here of any agreement to reeonvey or any intent to do so, and as to getting what belonged to him it is altogether consistent with getting his money by means of a sale on his own account. This is all the testimony in the case on the part of the plaintiff upon this subject, and it is so lamentably short of the kind of testimony required for such a case, that it will only be necessary to state the rule which has been established for quite half a century in this commonwealth, to make out a right of recovery in this class of cases.
The cases in which it is held that in order to convert a deed absolute on its face into a mortgage, or to create a parol secret trust as against such a deed, the evidence must be clear, precise and indubitable, are so numerous, and the profession is so familiar with them, that only a brief reference to a few of them will be necessary.
In the case of Fisher v. Witham, 132. Pa. 488, we said, “While a deed absolute on its face, executed prior to the act of 1881, may be converted into a mortgage by parol proof, it is well settled that the evidence must be clear, explicit and unequivocal. It must show an agreement in the nature of a defeasance, contemporaneous with the execution and delivery of the deed. Subsequent admissions alone are not sufficient. The evidence in this stale case falls far below the required standard, and we therefore think the court below was clearly right in sustaining exceptions to the master’s report and dismissing the bill.”
In Nicolls v. McDonald, 101 Pa. 514, we said, “ When a party sets up a title against a deed absolute in its terms and seeks to convert it into a mortgage the proof of the alleged agreement necessary to change its character must be clear, explicit and unequivocal. It should not rest on the subsequent admissions and declarations of the alleged mortgagee only.” . . . “ When the attempt is made he claims as a mortgagor seeking to redeem. Although the action may be ejectment in form, yet in substance it is a bill in equity to compel a reconveyance of the land from the mortgagee in possession. ... If the parol evidence be insufficient to move a chancellor to decree a reconveyance, it is insufficient to justify a recovery in ejectment. ... If he be of opinion that the evidence does not make out a case which would induce a chancellor to decree a conveyance, it is his duty to give the jury binding instructions to that effect.”
To show by parol that a deed absolute on its face is a mortgage the proof must be clear, explicit and unequivocal: Plumer v. Guthrie, 76 Pa. 441.
To convert a deed absolute on its face into a mortgage by parol evidence it must be clear, precise and indubitable, sufficient to satisfy the mind of a chancellor, otherwise it is error to submit it to the jury: Pancake v. Cauffman, 114 Pa. 113; Rowand v. Finney, 96 Pa. 192; Saunders v. Gould, 134 Pa. 445.
It is unnecessary to multiply the citations. Applying the principle to the present case it is seen at once that the plaintiff’s claim is destitute of merit. His oath is met by the contrary oath of the defendant Ease. If we look for corroborating circumstances they are absent, but they are present against his claim with great force. For instance in the very next year after
In our opinion no chancellor would decree a conveyance in such circumstances as these and therefore we hold that Burr cannot recover either against Kase or Stone.
The assignments of error are all dismissed.
Judgment affirmed.