215 Pa. Super. 413 | Pa. Super. Ct. | 1969
Lead Opinion
Opinion by
This is a case in which a father claims that his signature on a. deed of conveyance from him to his daughter and her husband was forged and that all encumbrances, recorded after the forgery were therefore void.
On July. 29, 1955, Samuel Hampson, widower, and his daughter, Albertis, acquired by deed a piece of property in 'Westmoreland County. On August 7,
On November 24, 1961, the Perrymans executed a mortgage on the property and a judgment bond in favor of the Foster Federal Savings and Loan Association. There then followed a series of assignments of the mortgage and bond on January 20, 1964, May 28, 1964, and January 10, 1966, respectively, the final assignee being a Marco Seoratow and his wife, Betty. All of the deeds, mortgage, judgment bond, and assignments were duly recorded shortly after they were executed. On July 29, 1963, a judgment was entered against the Perrymans by the Western Pennsylvania National Bank in the amount of $5,355.00 and on February 14, 1984, the judgment was assigned to the Investors Acceptance Corporation.
On June 24, 1966, Hampson filed a petition to set aside both the mortgage held by the Scoratows and the judgment held by the Investors Acceptance Corporation, claiming his signature on the deed of May 31, 1960, from him to his daughter and her husband was a forgery and that he was the true owner of the premises against which the mortgage and judgments were liened. Upon his petition, rules to show cause were granted.
On July 1, 1986, on further petition of Hampson, execution on a judgment entered by the Scoratows, assignees of the mortgage and judgment bond, against the Perrymans, was stayed pending determination of the petition to have the mortgage set aside.
Deposition of Hampson was taken in Florida and was admitted into evidence before a Master with the
Hampson filed exceptions to the Master’s report, findings of fact, conclusions of law, and recommendation, but the court en banc below dismissed the exceptions and upheld the determination of the Master.
This appeal by Hampson followed.
Our study of the record leads us to agree with the determination of the court below. One who seeks to rebut the presumption of the due execution and acknowledgement of a deed with proof of a forgery must do so by a preponderance of clear and convincing evidence: Machnofsky v. Smith, 101 Pa. Superior Ct. 578; Burke v. Burke, 240 Pa. 379; Roberts v. Washington Trust Company, 313 Pa. 584.
A reading of Hampson’s testimony, with its inconsistencies, generalities, and improbabilities, stamps it as insufficient in law to meet the required burden of proof. Nor does the testimony of Hampson’s witness, Mr. Broad, give such support to Hampson’s claim as to require the court to find in his favor. Hampson presented no corroborating evidence by the persons who could have given testimony regarding the execution of the deed, such as the person signing as witness to his signature and the Notary Public who subscribed as having notarized his signature. He failed to present a handwriting expert in support of the contention that his signature to the deed was forged.
In Thees v. Prudential Insurance Company, 325 Pa. 485, the court determined there was no knowledge on the pant of the husband of the wife’s forgery to his signature on a deed, and consequently, he could not have been guilty of laches or estoppel, there being no duty under the circumstances for him to make a search of the record to discover an instrument he never executed.
The case now before us is clearly distinguishable. The uncontradicted and clear evidence reveals that Hampson knew of the alleged forgery on August 1, 1963. He so alleged in the complaint filed by him against his daughter on June 24, 1966, in the Common Pleas Court of Allegheny County, which allegation was introduced during the course of his examination on deposition and acknowledged by him during the course of that examination. Hampson could have asserted his defense of forgery against the assignors who secured their interest in the property prior to Hampson’s knowledge of the alleged forgery, as a forged deed is a void deed even in the hands of an innocent purchaser: Reck v. Clapp, 98 Pa. 581 at 586. However, Hampson’s rights against the assignors are no bar against the assignees’ assertion of the defenses of laches and estoppel. It is true that an assignee takes a judgment or mortgage subject to any defense
It is our opinion that the lower court properly disposed of the forgery question in these proceedings since a determination of this matter was not inconsistent with the intent of the Pennsylvania Rule of Civil Procedure No. 3121. No objection was raised to the question of title being determined upon Hampson’s petition and rule in the lower court or in this tribunal. Furthermore, the record reveals that Hampson had originally filed an action in equity in the Allegheny County Common Pleas Court to have the deed set aside, and by agreement of counsel for the judgment creditors, that action was discontinued in favor of the procedure taken by Hampson in the Westmoreland Common Pleas Court. The only procedural question raised by the creditors in the instant action was whether or not Hampson could collaterally attack the liens. However, as summarized in 30 Am. Jur. 2d. Executions, §617, page 794: “An execution has been adjudged subject to collateral attack because of its enforcement against property not subject thereto, either because the property did not belong to the judgment debtor or because the property was exempt by law from execution.” In Capozzi v. Antonoplps, 414 Pa. 565, at 568, the appellant claimed that the court below lacked the power to adjudicate the validity of the purchaser’s title (at a Sheriff’s sale) upon petition and rule and that relief should have been sought through an action of equity or other appropriate action. The
“The Buies of Civil Procedure are clearly limited in their scope to practice and procedure in the courts of the first instance. They do not involve jurisdiction. See, Reading Co. v. Willow Dev. Co., Inc., 407 Pa. 469, 181 A. 2d 288 (1962). Moreover the test of jurisdiction is the competency of the court to determine controversies of the general class to which the case presented for consideration belongs . . . The court below certainly had the power of control over its own execution process and to act to prevent an abuse thereof. See: Cake v. Cake, Depew’s Appeal, 192 Pa. 550, 43 A. 971 (1899); and 15 P.L.E. Execution §95.”
The cases of Simon v. Sorrentino, 145 Pa. Superior Ct. 364, and Greater Valley Terminal Corporation v. Goodman, 415 Pa. 1, concerned the issue of whether or not title to property standing in the name of or in the possession of someone other than the judgment debtor could be adjudicated, at the judgment creditor’s request, in the execution proceedings. The Simon v. Sorrentino case arose prior to the new Rules of Civil Procedure effective November 1, 1960, and the Greater Valley Terminal Corporation v. Goodman case involved Rule 3118, “Supplementary Relief in Aid of Execution,” the Court limiting its pronouncement to “title to property cannot be properly adjudicated under the
The parties have acquiesced in the procedure fol-. lowed and have expressed no complaint in that regard. The parties to the action permitted the matter to proceed before a Master who received the evidence in the case, filed his report containing his Findings of Fact, Discussion, Conclusions of Law and Recommendation. This court, therefore, should not attempt to leave the door open for relitigation of the issues here presented by the parties. The fact that title was adjudicated without a jury trial is not crucial. Even in an action to quiet title no jury trial is available: White v. Young, 409 Pa. 562, at 567.
In the light of the foregoing, we affirm the order of the court below and order that the costs of this case be borne by Hampson, the appellant.
emphasis added.
emphasis supplied.
Concurrence Opinion
Concurring Opinion by
Although I concur in the affirmance of the lower court’s order, I think that our decision has the limited effect only of allowing execution to proceed.
Pennsylvania Rule of Civil Procedure 3121(a)(3) provides for a stay of execution pending disposition of a claim by any person against the subject property.
Admittedly, Greater Valley Terminal Corporation v. Goodman, cited by the majority, involved supplementary proceedings in aid of execution under Pa. R. C. P. 8118; but I consider the ease analogous to this situation and the language of the Court therein very helpful. Not only did the Court enumerate how the issue of title to property in the hands of third persons sought to be executed against should be ascertained, none of those listed being the proceedings attempted here, but also, on page eight, it stated: “. . . the Bench and the Bar must in all proceedings conform to the well-established procedures laid down by the legislature and this Court. The failure so to do can only lead to confusion in the administration of justice and deprivation of the rights of litigants in this Commonwealth.” The reasoning is similar in Simon v. Sorrentimo, 145 Pa. Superior Ct. 364, 20 A. 2d 805 (1941), also cited by the majority. I think that Judge Lipsitt correctly cited that case in Hollinger v. Penn Harris Beal Estate, Inc., 39 Pa. D. & C. 2d 201 (1966), in
Even if the parties had permitted the action in equity to proceed or if there was another claim by Hampson pending by proper procedure, I doubt that execution should be stayed in this case. I think that the practice prior to promulgation of Rule 3121 on stay of execution on realty still prevails, as discussed in 4 Goodrich-Amram §3121 (a)-1, as follows: “. . . claims to real estate or to interests in real estate cannot properly be raised as an automatic bar to execution under subsection (a)(3). As to such claims, the general rule is that the judgment creditor may be allowed to proceed to execution sale, with any questions of title or other adverse claims being properly raised and determined only in a later ejectment action brought by the purchaser.”
Therefore, I do not join in the reasoning or in the apparent adjudication of the substantive questions in the majority opinion but concur only in the result.