Clymer v. Groff
| Decision Date | 20 April 1908 |
| Docket Number | 271 |
| Citation | 220 Pa. 580,69 A. 1119 |
| Parties | Clymer v. Groff, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 16, 1908
Appeal, No. 271, Jan. T., 1907, by defendants, from judgment of C.P. Delaware Co., Dec. T., 1904, No. 172, on verdict for plaintiff in case of Jane B. Clymer, Assignee of Alfred S Miller, Mortgagee, v. Charles Groff and Henry Hinkle Executors of the last Will and Testament of Levi H. Clymer, deceased, Mortgagor, and Hester A. Wheeler et al., Real Owners. Affirmed.
Scire facias sur mortgage. Before JOHNSON, P.J.
The facts are stated in the opinion of the Supreme Court.
At the trial the court sustained objections to the admission of evidence as to the invalidity of the marriage between the plaintiff and the mortgagor. [1, 7]
The court gave binding instructions for plaintiff. [18]
Verdict and judgment for plaintiff for $3,758.75. Defendant appealed.
Errors assigned were (1, 7) rulings on evidence, quoting the bill of exceptions; (18) in giving binding instructions for plaintiff.
The judgment is affirmed.
Ormond Rambo, with him John M. Broomall and Benjamin Alexander, for appellants. -- The burden was on plaintiff to prove delivery and possession of the mortgage and the bond which it secured: Earnest v. Hoskins, 100 Pa. 551; West v. Irwin, 74 Pa. 258; Bradley v. Grosh, 8 Pa. 45; Lancaster v. Smith, 67 Pa. 427; Michaelis v. Brawley, 109 Pa. 7; Chess v. Chess, 1 P. & W. 32; Tyson v. Seitz, 15 Pa. Dist. Rep. 702.
The court erred in overruling defendants' offers to prove the facts and circumstances relating to the question of payment: Bradley v. Grosh, 8 Pa. 45; 1 Jones on Mortgages (6th ed.), p. 975; Lawson's Presumptive Evidence, 409; Mertz's App., 7 A. Repr. 187; Cox v. Ledward, 124 Pa. 435.
It was error for the court to give binding instructions for plaintiff: Holland v. Kindregan, 155 Pa. 156; Corcoran v. Mut. Life Ins. Co., 183 Pa. 443.
William I. Schaffer, with him Alfred S. Miller and Josiah Smith, for appellee. -- The delivery of a mortgage is not defeated because the mortgagor retains possession for safe keeping: Bradtfeldt v. Cooke, 27 Oregon, 194 (40 Pac. Repr. 1); Van Etta v. Evenson, 28 Wis. 33; Rigler v. Cloud, 14 Pa. 361.
The record of the mortgage, showing that it was executed, acknowledged and recorded, is conclusive evidence of its delivery: Kille v. Ege, 79 Pa. 15; Stinger v. Com., 26 Pa. 422; Blight v. Schenck, 10 Pa. 285; Coxe v. Deringer, 82 Pa. 236.
The mere fact that a deed is found among the grantor's papers after his death is no evidence of its nondelivery: Stinger v. Com., 26 Pa. 422; Cummings v. Glass, 162 Pa. 241; Penna. Co. v. Dovey, 64 Pa. 260.
On the trial of a scire facias sur mortgage the record of the mortgage is as good evidence as the instrument itself without producing the original or accounting for its nonproduction: Lancaster v. Smith, 67 Pa. 427; Curry v. Raymond, 28 Pa. 144.
Where an assignment of an equitable interest in land was found in the assignor's safe after his death, the safe having been used as a repository for the family papers and the assignee being a member of the family, the title of the assignee was upheld: Chase v. Clearfield Lumber Co., 213 Pa. 46.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
This was a scire facias on a mortgage, made by Levi H. Clymer, dated October 1, 1902, and payable in three years. It was made to Alfred S. Miller, who was attorney for the mortgagor, and was assigned, on the day of its date, to Jane B. Clymer. Both the mortgage and assignment were duly recorded on the day following their execution.
Jane B. Clymer, the assignee of the mortgage, was married to the mortgagor, had lived with him as his wife for many years, and was so living with him when the mortgage and assignment were executed. Levi H. Clymer died June 23, 1903, and the scire facias was issued against Charles Groff and Henry Hinkle, his executors, and the devisees under his will, as real owners. After Clymer's death the mortgage, with the accompanying bond and warrant and the assignment, were found in his safe deposit box, in an envelope. The deeds for the property were in the same envelope. Mrs. Clymer also had access to this safe deposit box, and had a separate key to it; but no other papers belonging to her were found there. There was evidence that, after the papers were recorded, they were mailed by the recorder of deeds to Levi H. Clymer. It was not shown who lodged them for record.
Upon the trial the court below directed a verdict for the plaintiff for the full amount of the mortgage, with interest upon the ground that the defendants had shown no legal defense to the mortgage. Judgment was entered upon the verdict, and the defendants have appealed, and have here assigned for error, in a number of specifications, among other things, the exclusion of certain testimony tending to prove that the plaintiff was not the lawful wife of Levi H. Clymer. The evidence was properly excluded, as it could have no effect upon the right to recover on the mortgage. At most it could have gone only to the question of the necessity of proving consideration, but want of consideration is not a valid defense to an action upon a sealed instrument: Cosgrove v. Cummings, 195 Pa. 497. Upon the trial, counsel for plaintiff merely offered the record of the mortgage and assignment in evidence, and rested. Defendants then presented testimony, and offered the original bond and mortgage in evidence. The trial judge held that the mortgage being in evidence and unanswered, entitled the plaintiff to recover. As the record stood, we think this ruling was right. The recording of the mortgage was prima facie evidence of delivery, and the presumption was not rebutted or destroyed by any evidence offered by the defendants. It is text-book law that "if a deed be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor:" 4 Kent's Com. *455. The presumption in favor of the delivery of a deed in case of voluntary settlement is stronger than in ordinary bargain and sale,...
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