Miles v. Waggoner

23 Pa. Super. 432 | Pa. Super. Ct. | 1903

Opinion by

Morrison, J.,

This was an action of ejectment brought by the plaintiff for the recovery of a small house and lot in the city of Corry. Both parties claim title under Mary Griffin, to whom it is conceded the land in controversy was conveyed by deed dated March 31, 1892, and recorded on November 6, 1893. The plaintiff proved title to the land in controversy by deed from Mary Griffin and Patrick Griffin, her husband, to the plaintiff, dated June 5, 1894, recorded on August 6, 1894. The plaintiff having shown a prima facie right to recover, and that the defendants were in possession rested out her case. The defendants undertook to show title and right of possession to the land in dispute by showing a judgment obtained against Mary Griffin before a justice of the peace on November 2, 1894, and following this by an entry of a transcript from the judgment in the common pleas of Erie county and showing the issuing of a fi. fa. on said judgment, condemnation of the land and levy and sale on a vend. ex. to G. W. Waggoner, and this was followed by sheriff’s deed of the land to said Waggoner.

It will be noticed that the defendant did not obtain his judgment before the justice of the peace, against Mary Griffin, for several months after the plaintiff’s deed for the land was on record. The defendants sought to defeat the plaintiff’s right to recover on the ground that her deed was fraudulent because it was given in consideration of natural love and affection and the sum of $1.00, at a time when the grantor was insolvent. To meet this the plaintiff proved by competent evidence to the satisfaction of the jury that she paid in addition to the consideration recited in the deed all that the house and lot were worth, to wit: the sum of $150. The contention of the learned counsel for the defendants is that because the plaintiff’s deed recited the consideration as natural love and affection and the sum of $1.00, she was estopped from showing any other or different consideration because the defendant, Waggoner, had seen fit to bring suit against the plaintiff’s grantor, obtain judgment and levy upon and sell this land as the property of Mary Griffin at considerable expense. The learned counsel for the defendants states in his printed argument “ that there is only one question in this appeal, and that is, whether, under the facts as developed at the trial, the plaintiff is estopped from showing another and a different consideration than that appearing in the deed. The whole question before the court is one of estoppel and nothing else. This cannot be made too emphatic.” He cites Stow v. Wyse, 7 Conn. 214, that “ a party who has admitted a fact in his deed, is estopped not only from disputing the deed, but every fact which it recites, and so are all persons claiming under and through him.” Also Schuylkill, etc. Improvement Co. v. McCreary et al., 58 Pa. 304, that “ the acceptance of a deed by a grantee makes its recitals evidence against him.” The counsel also cites Waters’s Appeal, 35 Pa. 523.

An examination of the cases and the learned counsel’s argument fails to convince us that they sustain his contention. There is no evidence in the record that the defendant or any one for him ever inquired of the plaintiff whether or not she paid any other or greater consideration than that mentioned in the deed, and, therefore we do not think she is estopped from showing the actual consideration paid. Indeed, the authorities in Pennsylvania are so numerous and conclusive upon this question that we are surprised that any contention is made to the contrary at this date. In Jack v. Dougherty, 3 Watts, 151, it is held that “ parol evidence may be admitted to prove a consideration other or greater than that expressed in the deed, to rebut the presumption of fraud arising from the inadequacy of such expressed consideration.” In that case our Supreme Court in an elaborate opinion by Kennedy, J., discusses and settles this question, and reversed the court below for refusing to allow the actual consideration to be shown. Jack v. Dougherty is cited and recognized in Sargeant v. Nat. Life Ins. Co., 189 Pa. 341, 347. In Strawbridge v. Cartledge, 7 W. & S. 394, it is held that “ a plaintiff in ejectment may prove' by parol evidence that the consideration paid for the land was much greater than that recited in the deed under which he claims to recover it.” That case is cited and recognized in Sargeant v. National Life Ins. Co., 189 Pa. 341. In Buckley’s Appeal, 48 Pa. 491, Strong, J., said (page 496): “ The rule excluding parol evidence to contradict or alter a written instrument does not prevent giving parol evidence of a consideration not mentioned in a deed, if it be not directly inconsistent with that expressed: Greenl. on Ev. sections 285, 304; White v. Weeks, 1 P. & W., 486.” In Lewis v. Brewster, 57 Pa. 410, it is held that “ evidence may be given of a consideration not mentioned in a deed if it be not inconsistent with that expressed.” That. case is cited and recognized in Irvin v. Irvin, 142 Pa. 271. See page 287. The case of Snayberger v. Fahl, 195 Pa. 336, is sufficient authority to sustain the court in permitting the plaintiff, in reply to the allegation of fraud, to show the actual consideration paid for the land. “ Estoppels by deed avail only in favor of parties and privies, and a judgment creditor has no privity of estate with his debtor: ” Waters’s Appeal, 35 Pa. 523.

The defendant having acted upon the theory that because the deed to the plaintiff was in consideration of natural love and affection and $1.00, it was, therefore, void, and having made the expense referred to in the endeavor to collect his claim from the plaintiff’s grantor, without making any inquiry of the plaintiff as to the actual consideration given for the land, does not stand in a position to plead estoppel against the plaintiff, when she offers to show the actual consideration paid for the conveyance in reply to his allegation of fraud. We. think this case was well tried and the verdict of the jury has settled the question that the plaintiff gave full consideration for the conveyance. The assignments of error are all overruled. Judgment affirmed.