Maffitt's Administrator v. Rynd ex rel. Lamb

69 Pa. 380 | Pa. | 1872

The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

This case might have been presented to the court and jury on the trial below in a way which would have precluded all question. Had the offer of the parol evidence in regard to the alleged trust or mortgage (in whichever light the transaction might be viewed) arising on the conveyance from James Bynd and others to Maffitt & Old, dated May 19th 1863, been as introductory only to evidence with which it was to be followed, that after Maffitt & Old had sold the land to the Pittsburg and Connellsville Coal, Coke and Gas Company on the 5th of January 1865, and received in payment $1000 in stock of the company, and their mortgage on the property for $2000, they sevei’ally and distinctly acknowledged that they held the personal property into which the realty had thus been converted for Louis Lamb — that it was his property — there would have been no doubt to raise about its admissibility. For assuredly it cannot be disputed that if a deed of land be made to A. and B. upon a parol trust that they will hold for the benefit of the grantor, or a third person — which parol trust cannot be enforced against the land, in consequence of the 4th section of the Act of April 22d 1856, Pamph. L. 533 —yet if they sell the land and convert it into money, a parol declaration made by them, subsequently to such sale and conversion, will be entirely effectual. The statute raises no bar as to the enforcement of a parol declaration of trust in respect to personal estate. From the acknowledgment that the personal property realized from the sale belonged to Louis Lamb, the law would imply a promise, supported by the moral obligation, resulting from the original engagement, to pay the money when its actual conversion into money took place to him, or to the grantors in the deedlo them, for the use and benefit of whoever might be beneficially entitled thereto. If the case had been made to turn upon this state of the facts, instead of drawing in other questions really extraneous, there never was a clearer or more conclusive one upon all the evidence, and that without contradiction, submitted to a jury. James Old, one of the defendants called by the plaintiffs to the witness stand, acknowledged the trust, and testified that he had paid to Louis Lamb his half of the money, the proceeds of the land. If James Maffitt had been living he would doubtless have done the same, but unfortunately he was deceased, and his administrator thought it necessary for his own protection to make this defence, and to remove the cause to this court for review. Oscar Lamb, however, testified to Mr. Maffitt’s distinct and clear acknowledgment to him after the sale to the coal company, “ that the surplus arising from the sale of these lots, after the mortgage was paid, and the Patterson debt was paid, belonged to my father; he once offered to transfer this mortgage to my father, and he offered at one time to pay in the stock of this company ; he always acknowledged there was a balance coming to my father, at least the amount of the sales of these lots, $3000 ; he acknowledged it at least six times.” There was no evidence in the cause, from the beginning to the end, which cast a shadow upon this testimony, but everything sustained and confirms it.

We must deal with the case, however, as presented on the record, and determine whether the learned judge below committed any error of which the plaintiffs have the right to complain. Fifteen errors have been assigned, but it will be found that they may all be disposed of by the consideration of two questions. First, whether since the Act of April 22d 1856, an absolute conveyance can be shown by parol evidence to have been a mortgage ? Second, whether the evidence in this case-was sufficient to submit to the jury that the deed of May 19th 1863 was a mortgage ?

As to the first of these questions, it is to be observed that in England, where the 7th and 8th sections of the statute 29 Car. II., cap. 3, are almost literally identical with the 4th section of the Act of April 22d 1856, it has always been considered not to be inconsistent with their provisions to show by parol evidence that an absolute deed was intended by the parties as merely a security for the payment of money. In truth, in every instance in which this is made to appear, there is necessarily implied an agreement by the grantee to execute a written defeasance, whenever required, and this is ruled in several of the earlier cases to be a sufficient ground for the interposition of a court of equity: Maxwell v. Montacut, Prec. in Ch. 526; Walker v. Walker, 2 Atk. 99; Johnes v. Stytham, 3 Id. 389. Other authorities are collected in 3 Leading Cases in Equity 608, 628, by Hare and Wallace, where the learned American editor discusses the question. In Russell v. Southard, 12 How. 139, Mr. Justice Curtis, delivering the opinion of the Supreme Court of the United States, remarks: “ To insist on what was really a mortgage as a sale is in equity a fraud, which cannot be successfully practised under the shelter of any written papers, however precise and complete they may appear to be.” And again: “It is the doctrine of this court, that when it is alleged and proved that a loan on security was really intended, and the defendant sets up the loan as a-payment of purchase-money, and the conveyance as a sale, both fraud and a vice in the consideration are sufficiently averred and proved, to require a court of equity to hold the transaction to be a mortgage.” It cannot be maintained, therefore, that the Act of April 22d 1856 has made any alteration in what has always heretofore been the established rule on this subject in Pennsylvania, where equity is part of the law, whether administered through common-law forms, or by bill and answer: Wharf v. Howell, 5 Binn. 499; Kunkle v. Wolfersberger, 6 Watts 126; Morris v. Nixon, 1 How. (S. C.) 118; Todd v. Campbell, 8 Casey 250; Rhines v. Baird, 5 Wright 256.

The second question presents no real difficulty. It appears to have been assumed by the learned counsel of the defendants below in their points in writing presented to the court, that unless the grantors in the conveyance of May 19th 1863 were indebted to the'grantees it could not be a mortgage, but could only be a trust, which, not being manifested by writing, was utterly void by the act. But this was evidently a mistake. It has been long settled that a mortgage may be executed to secure future advances, and it matters not whether such advances be for the use of the mortgagor or of a third person: Lyle v. Ducomb, 5 Binn. 585; Irwin v. Tabb, 17 S. & R. 419; Garber v. Henry, 6 Watts 57. The conveyance by Rynd and others to Maffitt & Old, was to secure them for the $3000 paid to Patterson for his interest in the Union Planing-Mill Company, some $700 which Mr. Lamb was indebted to that concern, and $1250 of an old indebtedness of Mr. Lamb to Maffitt & Old, which they had released without payment, and they were to hold the property until they realized their entire money out of it. The mortgagors were trustees for Mr. or Mrs. Lamb by the written agreement which had been previously executed between the parties, of which Maffitt & Old had full notice. So far as the question before us is concerned, it matters not whether the trust was for Mr. or Mrs. Lamb. We think there was evidence which justified the learned judge in leaving it to the jury to determine whether the deed of May 19th 1863 was or was not a mortgage.

There was no error in allowing the amendment in the names of the parties: Lycoming County Mutual Ins. Co. v. Schreffler, 8 Wright 273; Barnhill v. Haigh,'3 P. E. Smith 165; Downey v. Garard, 12 Harris 52; Walthour v. Spangler, 7 Casey 523. If the defendants were taken by surprise and were not prepared to meet the case in this new aspect of it, they rightly applied for a continuance, but the refusal of it is not reviewable here. It seems, however, proper to remark, that wherever an amendment is allowed in the names of the parties, after the jury have been sw.orn, it is the most regular practice to re-swear the jury according to the amended style of the action.

Judgment affirmed.