228 Pa. 126 | Pa. | 1910
Opinion by
Charles H. Sears purchased a steam grist mill in 1898, and another in 1902, and in 1907 he acquired certain buildings adjoining the first property. He operated the mills under his own name until his death, July 2, 1908. His son, Grover C. Sears, was in his service from 1902 until the last-mentioned date. On January 24, 1908, the father gave the son a letter of attorney granting him general power to carry on this milling business. Fred W. lidstone, a practicing attorney, prepared a voluntary deed conveying these several pieces of real estate from Charles H. Sears and wife to himself as trustee. The deed was dated January 28, 1908, and signed and acknowledged by the grantors on January 30, 1,908; but it was not recorded until July 14, 1908, when there was also placed upon record another deed dated and acknowledged February 11, 1908, conveying the same properties from Fred W. Lidstone, trustee, to Charles H. Sears and Grover C. Sears, partners under the name of C. H. Sears & Son. About the time when the deeds were recorded Grover C. Sears produced a writing signed by himself and by his father, dated February 3, 1908, providing for a partnership between the two for thirty years, under the name of C. H. Sears & Son, and in substance giving to Grover C. Sears an undivided one-half interest in the real estate in question; the only consideration moving from the son was an agreement to contribute his entire services to the business.
When Charles H. Sears died he left him surviving a widow, the son, Grover C., and another son, David. By his will, proved July 8, 1908, he made the Title, Guarantee & Trust Company of Scranton executor. No corporation of that name could be found and thereupon the widow and two sons renounced their right to administer in favor of the Scranton Trust Company. When
The defendant filed an answer denying the validity of the deed to Lidstone; averring that such deed was without consideration and was procured through undue influence and fraud at a time when Charles H. Sears was in such a physical and mental condition resulting from the excessive use of alcoholic liquors as rendered him unable to understand and realize the nature of his act; that a strong confidential relation existed between Charles H. Sears and his son, Grover C. Sears, under the power of attorney possessed by the son; that advantage had been taken of these circumstances by the plaintiff.to procure the deed-in question, and also the subsequent deed and partnership agreement; that none of these papers was ever delivered; that Chañes H. Sears had continued in the sole' and exclusive possession and enjoyment of all of the properties and the business until the time of his death, when a wrongful possession was taken by Grover C. Sears. The defendant also filed a cross bill joining Fred W. Lidstone as a party defendant, reciting the bill and answer, practically averring the same facts as those contained in the latter, and further averring that all the writings in question were made in pursuance of a fraudulent combination between Grover C. Sears and Lidstone at a time when the latter occupied a confidential relationship to Charles H. Sears as his attorney at law. The cross bill prayed for the cancellation of the writings; that Grover C. Sears
The chancellor who heard the case states the facts as we have narrated them. He further finds that the decedent died at fifty-seven in impaired health from continued excessive drinking; that the alleged partnership assets were valued at $17,979.87, and the decedent had no other property excepting a house and lot worth about $3,500; that the decedent was in possession of the real estate in question from the time he acquired title until the date of his death, carrying on the milling business in his own name, and that there was no apparent change in the ownership of either the properties or the business at any time; that the son Grover C. Sears was the confidential attorney in fact for his father under the written power from January 24, 1908, until the time of the latter’s death, and the evidence showed that during the last month of his father’s life the son was still actively exercising this agency and had signed bank checks in the father’s name in the conduct of the milling business; that after the date of the alleged agreement no partnership business was ever done or undertaken thereunder, but from that time on the business continued to be conducted as theretofore, the son acting only as his father’s agent and attorney in fact; that at the father’s death the son asserted no right as surviving partner; that at the time of his renunciation of his right to administer, the question arose as to the temporary management of the mills, and the son then asserted no such claim, but solicited a continuance of his agency under the administrator; that the existence of the partnership was not suggested to the administrator until some days thereafter,
The chancellor then finds that the decedent devised all of his estate to his wife, Mary E. Sears, “to have and to hold and to enjoy the same for her own use and benefit forever,” and by his will provided: “and to the end that my said wife may not be burdened with the care and management of my real estate, and that she may realize and enjoy the greatest income and benefit from the same, I do hereby order and direct that all my real estate be sold by my executor hereinafter named for the best price or prices that can be obtained for the same, my said executor to exercise his best judgment as to the proper time to sell the same, to realize the greatest return in cash or its equivalent to my estate, and until the said real estate is sold I do hereby empower my said executor to rent and collect the rents for the same for the use and benefit of my said estate, keep the buildings in necessary repair and keep the property insured against fire;” and he gave to his executor “full power to make, execute and deliver all necessary deeds and conveyances for sale and passing of a good title to my real estate as above directed.” Finally the learned chancellor states: “In the light of these facts it is believed that the partnership was never consummated by the delivery of the papers upon which the plaintiff’s case depends and that the projected partnership was abandoned by mutual consent of the parties. . . . The day before his death, July 1, 1908, was the last time the father was at the mill. It is believed the papers were then in his desk or else in the hands of Mr. Lidstone who had acted as his trustee and attorney in the transaction. The son first conceived the notion of claiming a partnership interest after the failure
The chancellor found that the decedent was in possession of his mental powers sufficiently to understand the nature and character of his acts about the time the papers in question were executed, but refused to make any finding as to the alleged undue influence, on the ground that it was irrelevant in view of the fact that the papers had never been delivered. On these findings the chancellor reached the following conclusions of law: “The several writings on which the plaintiff in the bill founds his claim operate as one instrument. On their face they import a voluntary gift of a large part of the father’s property to his son. At that time and at all times thereafter during the donor’s life, a highly confidential relation existed between the parties with respect to the subject-matter of the gift. Therefore the son has the burden of showing by clear and distinct proof that the gift was fully executed by the delivery of the papers. In the absence of any ostensible change of proprietorship and in view of the undisputed continuance of the relation of principal and agent with respect to the property, such proof is wanting; and the evidence is insufficient to warrant the conclusion that an actual partnership ever existed in the premises, or that the son ever acquired any interest in the disputed property. The evidence only warrants the conclusion that such partnership was proposed and the writings exhibited in the bill were made and executed accordingly, but that before their final consummation by delivery or anything having been done in pursuance of it, the proposal was abandoned by mutual consent of the parties. The will worked an equitable conversion of the real estate. The duty of actual conversion is with the administrator. The writings exhibited in the bill as the title papers under which the plaintiff therein makes claim are null and void
The chancellor took cognizance of both the bill and the cross bill, and entered a decree dismissing the former at the costs of the plaintiff, ordering the two deeds and the partnership agreement canceled, and directing Grover C. Sears to deliver to the administrator all papers, and to account for all moneys and property which may have come into his hands in connection with the business or’ real estate of his deceased father. Grover C. Sears has appealed from this decree, and contends: 1. That the defendant in the original bill, as administrator c. t. a., had no right to file the cross bill, and the court below should not have taken jurisdiction thereunder. 2. That such defendant had no right to relief under the cross bill as it was not confined to the subject-matter of the original bill. 3. That Lidstone could not be joined as a defendant in the cross bill as he was not a party in the original bill. 4. That the court was in error in placing the burden of proof upon the son to show the delivery of the deeds and the partnership agreement. 5. That the fact of the recording of the deeds was sufficient evidence of delivery, and that this had not been overcome by counter proof. 6. That the court fell into error in its findings of fact; particularly, in the finding that the partnership agreement was never consummated by the delivery of the papers upon which the plaintiff’s case depends, and that the projected partnership was abandoned by the mutual consent of the parties.
We will consider these contentions in the order in which they are stated.
2. “A cross bill may and usually does introduce new facts and new issues not disclosed by the original bill;” it is only necessary that they shall be germane to the subject-matter of the original bill: 16 Cyc. 331. All of the issues raised by the cross bill in the present case are so closely connected with those tendered in the original bill as to be practically the same. In addition, the jurisdiction in this regard was not challenged by demurrer or by the general answer filed. “The objection that a cross bill is not germane to the original is waived by a general answer to the cross bill:” 16 Cyc. 332.
3. The question as to whether or not new defendants, not parties to the original bill, may be brought into the suit by cross bill depends upon the circumstances in each particular case. Although there is some conflict on this point, the decided weight of authority is that they may; and those cases which hold that they may not, are based upon a dictum to that effect by Curtis, J., in Shields v. Barrow, 58 U. S. 130. The general rule is that new parties may be brought in by a cross bill which seeks affirmative relief and shows that the persons added are necessary parties for that purpose; that is, that they have an interest in, or material connection with, the subject-matter in dispute between the parties to the original
4. In ruling on the burden of proof, the chancellor relied upon Greenfield’s Est., 14 Pa. 489; Wistar’s App., 54 Pa. 60; Darlington’s App., 86 Pa. 512; Worrall’s App., 110 Pa. 349; Darlington’s Est., 147 Pa. 624; saying: “The entire conduct of, the parties to the writing, and especially that of the beneficiary, is so inconsistent with the theory of actual partnership as to negative the inference that it ever existed except on paper. The only apparent purpose of the deeds was to transfer title to the supposed partnership. If none existed, the inference of delivery to the same would be further repelled. Under these circumstances the burden of affirmative proof of bona fide delivery must be on the son who claims by a deed amounting to a voluntary gift from his father, whose confidential agent he was with respect to the property when the deed was made. He relied upon the presumption arising from the fact that the papers are now in his possession. That presumption is clearly rebutted by the circumstances. Where a conventional trust exists it is believed that the burden of proof is always on an agent who takes title to his principal’s property, where the transfer has been consummated. There is exactly the same reason why he should have the burden of fairly accounting for his possession of the title papers where extrinsic evidence of consummation is wanting and the actual delivery of the papers is open to serious question. It thus becomes apparent that whether the transaction here was technically a gift or not, is immaterial. The difference with respect to the
5. It appears that some one left the two deeds at the recorder's office twelve days after the death of the decedent. The only witness who mentioned the subject of the recording was the justice of the peace who took the acknowledgments of Charles H. Sears and wife to the deed to Lidstone, and he states that Mr. Sears then said that the deed was not to be recorded during the lifetime of his wife. While as a general rule the mere fact that a paper is found upon record is evidence of delivery without further explanation, in the present case, it being shown that the deeds went upon record after the death of the decedent and prior to the death of his wife, and there being no evidence to show how the papers came upon the record — the production of such evidence under the fácts.in the case presumably being within the power of the ■ appellant — and the surrounding facts strongly indicating that neither the father nor the son ever treated the papers as delivered during the lifetime of the former, a chancellor could well conclude that the inference of delivery arising from the recording had been overcome. The testimony of Lidstone as to the delivery of the deeds to him is uncertain, vague and indefinite. The other testimony showing that- the deeds were seen in Mr. Lid-stone's office after their execution, standing as it does,
6.'The chancellor correctly states: “The conclusion is irresistible that, for reasons of their own, after the partnership papers were formulated, and without having put them in effect, the proposal was mutually abandoned and the son elected to continue as the father’s agent. True, there is some evidence that Mr. Sears was heard to say that he had taken his son into business, or was going to give him an interest in it, etc. These declarations are, at best, of vague and uncertain import, unconnected with any corresponding partnership act. If the papers had ever taken effect, there would have been some act in evidence at least tending to show a change of proprietorship. The son would not have been confined to evidence of mere declarations. ... It is to be considered that it was of the very essence of the son’s case to prove an actual partnership with his father; that he made no claim that any account had ever been kept in the partnership name; that the partnership, if it ever existed, was of recent date; that the books were available to show the name of every customer having occasion to take receipts; and that the vouchers could have been produced on subpoena.” Aside from these- weaknesses in the proofs, the preponderance of the testimony produced by the appellant tended to connect him with the .business of his father, not as a partner, “but in a way that in itself was always consistent with the inference of his agency under the father,” and the testimony to the contrary was meager and unconvincing. Under all the circumstances the appellant cannot justly complain of the chancellor’s decision that he had failed to establish the alleged partnership, nor of the decree entered.
We discover no manifest error in any of the findings
The assignments of error are all overruled, and the decree is affirmed at the cost of the appellant.