31 Pa. Super. 485 | Pa. Super. Ct. | 1906
Opinion by
The administrator of the estate of Morris B. Harrison, deceased, filed his final account showing a balance for distribution of 11,773.59, proceeds of the personal estate of the decedent. The distribution of this money came before Hawkins, P. J., and all of the testimony was taken before him, and upon consideration and decree filed, he awarded the money to the widow and infant child of the decedent, instead of to Joseph Herron, the appellant, on account of a bond and mortgage which he
The learned auditing judge said the question involved is, whether or not a certain mortgage was given for value.
It appears in the evidence that the appellant had in his possession a bond and mortgage against Morris B. Harrison for the sum of $7,000, conditioned for the payment of $3,500. These papers were dated March 5, 1903, but the mortgage was not recorded till March 9, 1904, three days before the death of Harrison. The description of the mortgaged land is quite incorrect, and it bears evidence of having been prepared in haste or with great carelessness. It also appears that there was a judgment note against the mortgagor in favor of the appellant for $3,500, but it was not presented as a claim in this hearing.
At the audit the appellant claimed the full amount appearing due upon his mortgage and, the validity of his claim being disputed, he undertook to satisfy the learned auditing judge that the bond and mortgage .were executed and delivered to him for money borrowed by the decedent.
A careful consideration of the evidence discloses several suspicious circumstances connected with this transaction. The learned auditing judge, who has had a very large experience with this class of cases, saw and heard the witnesses and had a much better opportunity of judging of their credibility and the weight of their testimony than we can possibly have on this appeal. The opinion filed clearly indicates his conclusion that the appellant’s claim was fraudulent; that he did not loan the money to the decedent and that his claim was not entitled to recognition. It is'so well settled that “the finding of an auditor approved by the court will be sustained on appeal, if there is any evidence which warranted it,” that it hardly seems necessary to cite authorities: Fessenden’s Est., 170 Pa. 631. It is manifest that the same rule prevails where the court below hears the testimony and finds the facts and decrees accordingly.
We have carefully examined the evidence, printed and furnished to us by the appellant, and we do not discover any such clear or manifest error in the findings of the auditing judge as to call for a reversal of the decree. In addition it is averred,
It is strongly argued by counsel for the appellant that the bond and mortgage should be upheld because they were delivered to the appellant in trust to provide for the support of the decedent’s father and mother. If the bond and mortgage had been fairly executed and delivered for that purpose, and the appellant had placed himself upon that ground at the audit, his position would have been very strong. Certainly it was within the power of the decedent to have executed and delivered a valid bond and mortgage for such purpose. But the appellant and his counsel did not present their case to the auditing judge upon that theory. They relied on their claim and attempted proof that the appellant loaned the money to the decedent. Having placed their right of recovery on the latter ground it would be manifestly unjust to permit them to shift their ground on this appeal, and then convict the court of error in not deciding a question that was not fairly raised. By attempting to prove a money consideration for the mortgage the appellant, practically, conceded that it was not given to him in trust for the support of the decedent’s parents. Moreover, there is nothing on the face of the bond and mortgage indicating that they were given for that purpose. The manner in which this case was presented in the court below and here indicates that the appellant did not have an abiding faith and belief that he could recover on either theory standing alone. He undertook to prove that he gave full value for the mortgage, but Mr. Pierce, cashier of the First National Bank of Elizabeth, testified pointedly that the appellant told him that the mortgage and judgment were for the benefit of his parents, and that he gave nothing for it.
We cannot agree with the conclusion reached by the auditing judge that the infant child of the decedent can avoid the bond and mortgage on account of the fraud of his father. But we are not convinced that the appellant presented such strong evidence that the learned judge was bound to find that his bond
The appeal is dismissed at the costs of Joseph Herron, appellant, and the decree is affirmed.