31 Pa. Super. 608 | Pa. Super. Ct. | 1906
Opinion by
By deed dated March 25, 1885, O. P. Thompson conveyed to Maud M. Griggs and Norman B. Griggs a farm of about fifty acres in Farmington township, Warren county, Pennsylvania. The consideration of the conveyance was $1,600. The purchase of the farm was negotiated by Eugene S. Griggs, husband of Maud M., and A. P. Griggs, father of Norman B. Griggs. The conveyance was made to Maud M. and Norman B., as tenants in common,"by direction of Eugene S. and A. P. Griggs. Norman B. Griggs went into possession of the
At the date of the deed, one-half of the $1,600 purchase 'money was paid to Thompson by Eugene S. Griggs conveying to him four lots of land in Jamestown, N. Y. An attempt was made herein to show that A. P. Griggs owned two of the lots in Jamestown, but it does not appear that he ever had any paper title to the same nor that he ever had possession of said lots, and the evidence does not identify or individuate the two lots which he claims; and upon this point, it would be entirely unsafe to assume that he had a valid interest in any of the lots conveyed to Thompson.
It clearly appears that by reason of payments made to Thompson by A. P. Griggs on the mortgage, the amount unpaid thereon was reduced, so that on June 25,1904, there was only due and unpaid to Thompson the sum of $734.78. However, a scire facias was issued on said mortgage and on August 16,' 1904, judgment was taken, liquidated and entered thereon for $1,290.80. It further clearly appears that the attorney for O. P. Thompson and A. P. Griggs gave a statement to the attorney for Maud M. Griggs showing that the amount due and unpaid on the_mortgage on June 25, 1904, was $734.78. Soon after the entry of the judgment for $1,290.80, Maud M. Griggs, now Riquer, presented her petition to the common pleas court of Warren county asking that said judgment be opened and she be permitted to defend to all of it in excess of $741.03. Thereupon, on November 10, 1904, on testimony, argument and consideration the court opened the judgment as prayed for and awarded an issue to ascertain the amount due on the mortgage on August 17, 1904, for which judgment should have been entered. In this issue A. P. Griggs was m'ade plaintiff and Maud M. Riquer and Norman B. Griggs, defendants, the pleadings to be as per rule of court. Upon this issue a ver
At this'trial counsel for A. P. Griggs produced and offered in evidence an assignment, dated August 11, 1904, from O. P. Thompson to A. P. Griggs for all of the debt and interest on said mortgage above $741.03, to wit, $509.97; the latter sum being the amount A. P. Griggs claimed he had paid to O. P. Thompson during the time he had been in possession of the land.
It was testified to and contended by Maud M. Riquer that A. P. Griggs paid this amount for the use of the farm under the agreement made at the time he went into possession. The court below excluded this offer on the theory that the issue was framed to ascertain the amount due and unpaid on the mortgage on August 17, 1904, and that the rights of A. P. Griggs and Maud M. Riquer could not be determined in the pending issue as to which of them had paid the most on the mortgage. This ruling of the court gives rise to the leading-exception in this appeal (6th assignment).
It is not made to appear that A. P. Griggs ever had any title or pretense of title to the mortgaged land. The deed was made to Norman B. Griggs and Maud M. Griggs by A. P. Griggs’ consent and direction. Every gift by will or deed is supposed, prima facie, to be beneficial to the donee, and, therefore, the law will presume that the gift is accepted until the contrary is proved : Perry on Trusts, 240.
In the present case Norman B. Griggs accepted the title conveyed by the deed and took possession of the land. No trust therefore resulted in favor of A. P. Griggs under the facts in evidence. Norman B. Griggs never divested himself of said title by conveyance, and it remained in him through all of this controversy. If it had been shown that the conveyance was for the benefit of A. P. Griggs, and not a gift to Norman B., then it might be contended with force that the latter held the title in trust for A. P. Griggs; but the evidence does not warrant any such conclusion. The latter having no equity in the property, he is not within the principle giving the right of a codefendant, a surety, a cosurety or other person making payment of an obligation; nor of one who makes payment under a contract or by reason of privity of interest or of estate, to be subrogated.
But how does he stand in view of his agreement to use the the farm and pay the mortgage ? No reason exists inlaw or equity why he could not purchase the one-half interest in this land and give it to his son, giving a mortgage thereon and agreeing to pay the mortgage. This is practically the testimony of Maud M. Riquer. If her testimony is accepted, it shows that A. P. Griggs occupied and used the farm ever since the date of the mortgage, making the payments to Thompson under the agreement with Maud M. Riquer, her husband, and Norman B. Griggs, Avithout calling upon any of them for aid and assistance in making the payments or for contribution on account of them. A. P. Griggs must have known that Thompson Avas applying the payments in discharge of the interest and-so much of the debt as was paid. It therefore seems, if there is any doubt that he paid as a mere volunteer, that the payments were made with a- clear intent to discharge the. debt and interest pro tanto. - No matter if A. P. Griggs does claim now that he did not pay on the mortgage to discharge
At the time Mrs. Riquer paid the' balance of debt, interest and costs due on the mortgage to the sheriff, she was compelled to do so or lose the land. It therefore seems equitable and just that she should have the right to collect one-half of the sum so paid out of the interest of Norman B. Griggs in the land. As- the record then stood she and her comortgagor were presumably equally obligated to pay it: Stroud v. Casey, 27 Pa. 471; Watson’s App., 90 Pa. 426; Ackerman’s App., 106 Pa. 1.
But as the record stands we have devoted more attention to the facts and equities than is necessary. The feigned issue framed and tried before the court and a jury determined that all of the mortgage had been paid except $741.08, and on this verdict a final judgment was entered on April 29, 1905. This judgment does not seem to be appealed from. The record before us is, “ appeal of A. P. Griggs from the judgment and decree of the court of common pleas of Warren county, subrogating Maud M. Riquer to the rights of the plaintiff, O. P. Thompson, to the extent of one-half of the amount she paid the sheriff, to wit, $423.09, with interest thereon from that date, and she is allowed to collect the same out of the interest held by Norman B. Griggs in the mortgaged premises, with the costs of this proceeding.” Now with a final judgment, unappealed from, that the mortgage debt and interest had all been paid on August 17, 1904, except $741.03, and the additional conceded fact that Maud M. Riquer had paid the whole of this sum, with interest and costs, to the sheriff to prevent the sale of the land, how can it be successfully contended that the court erred in making the order above quoted that she be allowed to collect the one-half of this sum out of the interest of her comortgagor in the land in question? If there was error in the trial and judgment to the effect that the mortgage
This view of the case relieves us from deciding the questions of the competency of A. P. Griggs, Norman B. Griggs and other witnesses. This question has been discussed at a considerable length by the learned counsel for the respective parties, but we will not consider it further.
A careful consideration of the record, assignments of error and arguments of the counsel does not .convince us that the learned court committed reversible error.
The assignments of error are all dismissed and the order and decree appealed from is affirmed at the costs of the appellant.