179 Pa. 308 | Pa. | 1897
Opinion by
The mortgage in question in tliis case was made in 1883 by the appellee Margaret Armbruster, to the decedent Rosin a Schiehl, to secure the payment of 11,500. It was duly recorded •and was in possession of the decedent during the remainder of her life, and at the time of her death. The mortgagor made many payments of interest on it during the decedent’s life, and ■sold her some groceries which were to go on account of interest. At the death of the testatrix this mortgage was among her papers and constituted apparently a part of her estate. The mortgagor, having been appointed executrix of the will of the deceased, settled an account in which she did not charge herself with the mortgage, or the debt secured by it, and the appellant who was the husband of the decedent sought to surcharge her with the amount of the mortgage and interest due thereon. The auditing judge surcharged the accountant with the mortgage and interest, stating in his opinion that there was no sufficient evidence-of the husband’s consent to the gift. Upon -exceptions filed, however, he changed his mind upon this subject, and held there was sufficient evidence of his assent, par
There was more of this kind of testimony given by the ex-ceptant, but it is not necessary to repeat it. It is absolutely at war with the fundamental theory of the accountant, which was that she was the owner of the mortgage by gift from the' mortgagee. She was certainly not the owner in point of fact at any time. She never had it in her possession; it never was delivered to her, it never was assigned to her. The title of the mortgagee to the mortgage was never divested by any act of any kind, and it remained her own exclusive property up to the moment of her death. The mortgagor was to pay, and did pay, the interest on it, and the mortgagee constantly demanded the interest, and thereby asserted her ownership to the last.
The title asserted hy the mortgagor is of a very vague and indefinite character, founded exclusively upon the loose and uncertain testimony of verbal declarations of the’ mortgagee, many of which were conflicting with each other, in some of which a gift of the money, and in others a gift of the mortgage, is asserted, and in some of them an agreement is declared to the effect that the principal was never to be paid, but the interest, or so much as the mortgagee needed was to be paid.
The acquisition of contract rights, or property rights, by this sort of testimony, has been so frequently and so emphatically condemned by this court that it is not necessary to cite the authorities. A brief examination of the testimony given by the accountant and her witnesses in support of her claim will demonstrate its utter insufficiency to establish anything like a legitimate title to the mortgage in question.
The accountant was herself cross-examined as a witness and gave this version of her claim: “ I borrowed fifteen hundred •dollars from my sister which she gave me as a present and for which I gave her a mortgage.” How the sister loaned her fifteen hundred dollars, and took a mortgage for it, and at the same time gave it to her as a present, cannot possibly be understood. She said further, “I gave that mortgage to my sister in 1883. My sister would not have taken the mortgage if she thought she would die before me. She made the mortgage if I should die before her.” It is only necessary to say to this that “her sister” did not make the mortgage, and there is nothing in the mortgage about the accountant dying before her. Again, “ I have not paid that mortgage, as she gave it to me as a present.” Here she asserts a gift of the mortgage instead of the money, but both assertions were equally untrue, because there never was any gift of the mortgage; her sister retained it always to the time of her death. Again, “ I paid a little interest on it. My sister said to me I should give her a little interest if I could, and if you cannot, it is all right, and the last three or four years I gave her groceries
The accountant’s son was also examined, but his testimony was no better than his mother’s. He said, “ I was present when the mortgage of Magdalena Armbruster to the decedent for fifteen hundred dollars was written out, and was there with mother and Rosina Schiehl when it was signed. Rosina Schiehl gave my mother the money a few days before this mortgage was made as a present to build this house. . . . She told my mother she never wanted the money. . . . She made the mortgage in case my mother should die, and in case she would ever get in need us children could help her along.by paying the interest. The understanding was the fifteen hundred dollars was never to be paid. Just part of the interest if she needed it
Mrs. Ammerdick, a daughter of the accountant, testified,
Mrs. Clinsing, another daughter of accountant, testified for her as follows: “ Mrs. Schiehl said she gave $1,500 to mother as a present and never wanted it back; she said, ‘ Isabélla, I gave your mother $1,500 for a present, you will get some of that, and I never want it back.’ She was positive she did not want it back, as she had given it to mother as a present.” She repeats the same story in her cross-examination two or three times. According to this testimony the money was given as a present and therefore belonged to the accountant from the very, beginning. Mrs. Dank, another witness for the accountant, testified, “ I often heard her (Mrs. Schiehl) say that this $1,500 belonged to her sister, and had given it to her as a present, and that she could give her the interest on it.” She repeats the same statement several times. One more witness, Catharine Keller, speaking of a conversation she had with Mrs. Schiehl, was asked, “ Q. What did she say about the $1,500 ? A. She said the mortgage was hers, and if she could not pay any interest it was all right. Q. By her she means Magdalena Armbruster? A. Yes, sir, I mean her.” According to this testimony it was the mortgage and not the money that had been given to the accountant.
The foregoing is the substance of all the testimony given by the accountant. A mere perusal of It shows that it will not bear the least investigation. There is no certainty arising from it as to what the accountant’s claim really is, because her contentions are entirely conflicting and contradictory. Her claim that the $1,500 of money was given to her as a present is an absolutely unfounded claim which can not possibly be sustained in any aspect of the testimony. We know absolutely, and from her own testimony, that it was not given to her. She says herself, “I borrowed $1,500 from my sister .... for which I gave a mortgage.” But the fact that she gave a mortgage for the money is an incontestable and undisputed fact, and hence she could not have been the owner of the money by gift or by
If it be contended that the mortgage was given upon a condition that the principal was never to be paid, and only such interest as the obligee needed, the manifest reply is that there is no such explicit testimony in the case, and if there were, it is merely verbal testimony to contradict, alter, change and nullify a solemn, sealed and delivered obligation, in no part of which do any such terms hr conditions appear. Moreover there is not a scrap of testimony anywhere in the case, that any such conditions were agreed upon and omitted to he inserted in the instrument by any mistake, fraud or imposition on the part of any one, or that such a thing was ever asked, or consented to by anybody. There is not a single element appearing in the testimony which would be necessary, indispensable, to bring the case within the line of decisions under which written instruments may be changed by. parol. This branch of the case may he dismissed without further comment.
The only remaining contention, that the mortgage was given to the accountant, is in a still worse condition, if that were possible, than either of the others, because it is both physically and legally untrue. The mortgage was never given to the accountant, but remained in the decedent’s possession until her death, and was found among her papers after her death. This is distinctly proved by the testimony of Peter Schiehl, by the accountant, and by her daughter, Mrs. Ammerdick, both of whom hunted for it and could not find it the evening before Mrs. Schiehl’s death.
On the legal aspect of this subject the authorities are most clear and explicit. In the case In re Campbell’s Est., 7 Pa. 100, the accountant was the administrator and favorite nephew of the intestate, and was indebted to his uncle upon several promissory notes which his uncle held against him. It was distinctly proved before the auditors that the intestate made a
How infinitely stronger is this cited case than the case at bar. There, there was no question about the intent of the owner and his positive direction to his wife to destroy or deliver the notes. And yet because this was not actually done in the owner’s lifetime it was nugatory. Here everything is in dispute. There was no direction to destroy or deliver the mortgage, there was no pretense of an assignment of it, and it remained in the owner’s possession and control until her death. The only testimony as to an intent to give, is the flimsiest and loosest kind
In Kidder v. Kidder, 33 Pa. 268, the decision in Campbell’s Est. was approved and followed. There also the facts were vastly stronger than in this case. The plaintiff in an action of assumpsit held a promissory note for 1454 against two persons. He executed a release in writing, but not under seal, of one of the defendants from all liability on the note. The court below held this tobe a good release of the cause of action, but this court reversed the judgment, holding that the release not being under seal was without consideration, and that-as a gift it could not be sustained because the note was not delivered to the debtor. Thompson, J., delivering the opinion said, “The release in question, in this case, is without a seal and without any consideration expressed. . As a release it was void. It was nudum pactum, and should have been so held by the court. The defendant in error feeling the force of the want of consideration, as a dernier resort, has endeavored to give effect to the release, as a gift to the releasee of one half of the demand. But this is, if possible, a more hopeless undertaking than that of supporting the release without a consideration. It was not an executed gift even if the instrument would bear the interpretation that a gift was intended, because the instrument to be given was not delivered. If then, it was but an agreement to give, it could not be enforced without a consideration, any more than could a release. On this point the case In re Campbell’s Est., 7 Barr, 100, need only be cited.” Then follows the citation already quoted. In this case also there was not the least question as to the intent of the plaintiff to release the cause of action. It was expressed in writing, and signed by the plaintiff, but because it was not under seal, and no actual consideration was proved, it could have no effect as a release, and could have none as a gift because the note was not delivered. In the present case there never was any such thing as a
It is not necessary to extend the citations. They are not controverted, and are the undoubted law of the commonwealth. The appellee cites Livingood’s Appeal, 167 Pa. 191, to sustain the contention that the title to the mortgage passed to the accountant. An examination of that case, however, shows that the facts were entirely different. There the decedent in his lifetime directed his wife to deliver to his brother a bond and mortgage which he held against him. The wife actually did deliver the securities to the brother, who took them into his possession, and subsequently returned them to the wife of the obligee with a request that she would keep them for him until he called for them, which she agreed to do, and continued to hold them for the obligor as his bailee or agent until after the death of the obligee. She placed them, after his death, in a box in which the obligee had kept other securities, and they
The auditing judge further found “that the decedent intended to forgive, and actually did forgive, the ■ debts of said William H. Livingood,” mentioning them, and “that from February 19, 1890, or very soon thereafter, until after the death of the decedent, the securities for the said debt were in the possession of the said William H. Livingood, by directions of the decedent.” fie further found as follows: “I have found as facts, the intention of this testator to forgive these debts, and his actual delivery to the accountant of the securities for them, and that the securities were in the possession of the accountant at the decease of the testator.” Upon these facts it was ruled by the orphans’ court and affirmed by this court, that there had been an actual delivery of the securities to the debtor, who thereafter held them in his possession until the death of the obligee. It is only necessary to say that there are not only no such facts in the present case, hut that the actual facts are diametrically opposite to these.
The case of Davidson v. Young, 167 Pa. 265, is also cited for the appellee, but is no more applicable to this case than the last one cited. It was an issue of fact to determine the validity of a judgment given by a son to his father, where it was alleged and proved that at the time the judgment was given it was verbally agreed between the parties that the judgment was given merely to secure the father’s support in case he met with reverses, and that no portion of it was ever to be collected unless he needed it for that purpose. The question
The decree of the court below is reversed at the cost of the appellee, and the record is remitted with instructions to surcharge the accountant with the mortgage in question and interest thereon, and to restate the account and make distribution in accordance with this opinion.