Dumbach v. Bishop

• Decision Date: 03 January 1898
• Docket Number: 78
• Citation: 39 A. 38,183 Pa. 602
• Parties: Catharine Dumbach v. Annie Bishop, William Bishop, Matilda Enslen, Sadie Lauffer and Louisa Dumbach, Appellants
• Court: Pennsylvania Supreme Court

39 A. 38

183 Pa. 602

Catharine Dumbach v. Annie Bishop, William Bishop, Matilda Enslen, Sadie Lauffer and Louisa Dumbach, Appellants

No. 78

Supreme Court of Pennsylvania

January 3, 1898

Argued October 19, 1897

Appeal, No. 78, Oct. T., 1897, by defendants, from judgment of C.P. Butler Co., Sept. T., 1896, No. 73, on verdict for plaintiff. Affirmed.

Ejectment for two lots in Evans City. Before GREER, P.J.

The facts appear by the opinion of the Supreme court.

At the trial the court admitted under objection and exception the testimony of the plaintiff as to a transaction which William Bishop, a witness for defendants, described as occurring when the witness, the plaintiff and her husband were present. [2]

Defendants' point and the answer thereto among others were as follows:

3. The evidence in this case is not sufficiently clear, explicit and satisfactory to justify a submission to the jury of the question of a resulting trust in favor of the plaintiff, and the verdict must, therefore, be for the defendants. Answer Refused; we leave that question to the jury. [1]

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1) above instructions, quoting them; (2) ruling on evidence, quoting the bill of exceptions.

Judgment affirmed.

Lev. McQuistion and W. H. Lusk, with them A. T. Black, for appellants. -- A recovery by means of the verdict of the jury will not be permitted upon a title that is void in law, unless equity and good conscience entitle such party to the intervention of a chancellor: Wylie v. Mansley, 132 Pa. 65; Logan v. Eva, 144 Pa. 312; Hess v. Calender, 120 Pa. 138; Reno v. Moss, 120 Pa. 49; Hoover v. Hoover, 129 Pa. 201; Gilchrist v. Brown, 165 Pa. 275.

Plaintiff was not a competent witness: Johnson v. Watson, 157 Pa. 454.

J. D. Marshall, for appellee, cited as to the competency of the plaintiff as a witness: Cornell v. Vanartsdalen, 4 Pa. 364; Homan v. Homan, 12 W.N.C. 86; Robb's App., 98 Pa. 501; Stephens v. Cotterell, 99 Pa. 188; Adams v. Bleakley, 117 Pa. 283; Johnson v. Watson, 157 Pa. 454.

Cited as to the sufficiency of the evidence to establish a resulting trust: McLaughlin v. Fulton, 104 Pa. 161; Light v. Zeller, 144 Pa. 570; Logan v. Eva, 144 Pa. 312.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

Two questions only are raised on this record, one that the evidence is not sufficient in character or quality to create a resulting trust, and the other, the competency of the plaintiff as a witness. In regard to the first, the well established rule of long prevalence is, that the testimony in its entirety must be sufficient to satisfy, not only the jury, but the court also, sitting as a chancellor, and if it is deficient as to the latter it must be withdrawn from the jury. This being the undoubted rule in this class of cases, it is only necessary to investigate the testimony to learn whether it conforms to the standard. It must be observed that there is no question of purchasers or of creditors involved in the issue. The plaintiff is the widow of John Dumbach in whose name the legal title to the land in dispute was held, and the defendants are her own children. The latter claim title by descent from their father, and their mother claims that the land was bought for her, at her own instance, and was paid for by her, and with her own money, and that she therefore has a valid equitable title to the land by way of a resulting trust. There is of course no question as to the sufficiency of her title if the facts in evidence are such as to establish it, tested by the rule heretofore stated. The land in dispute consists of two lots, Nos. 17 and 19, in Stewart's plan of lots in the borough of Evans city, 45 feet by 140 feet each. The deed for these and two other lots, Nos. 13 and 15, was made on June 10, 1890, by Martin Wahl to John Dumbach. The plaintiff claims that the consideration for the two lots 17 and 19 was $600, the whole of which was furnished and paid by her. The witnesses in support of the claim are Louisa Dumbach, one of the defendants, and a daughter of the plaintiff, and the plaintiff herself. There were some preliminary negotiations for the purchase of the lots, conducted by William Bishop, one of the defendants, the husband of a daughter of the plaintiff. On this subject Louisa Dumbach testified as follows, in reply to a question asking her to state the conversation between her father, her mother and Bishop: "The first was that Bishop wanted father to buy a lot and build a house, and father told him to go and see if he could get the lots from Mr. Stewart; so father told him to go and buy two, and then mother came in and said to go and buy two for her; mother said she would pay for two and father said he would pay for two and the deed was to be made in mother's name for all." Afterwards the witness said that Bishop brought a deed, and being asked, "When were the lots paid for?" she answered, "When he brought the deed. Q. Who paid Bishop the money? A. Mother. Q. Who paid for the two $300 lots? A. Mother. Q. What was to be the price of the first two lots, the one the house is on and the one next to it? A. I don't remember. Q. Was there any price mentioned in your presence for any of the lots? A. Yes, sir. Q. What was the first to cost? A. $400. Q. And the next? A. $300. Q. Which two lots was it arranged your father was to pay for? A. The $400 one and the one next to it. Q. Which was your mother to pay for? A. The next two. Q. Which lots, if any, did your mother pay for? A. For the two next the school house. The Court: The two farthest away from the $400 lot? A. Yes, sir. Q. Did you see the money paid? A. Yes, sir. Q. Who paid the money? A. Mother. Q. Did you know of your mother having money of her own? A. Yes, sir. Q. Where did she get the money she paid for these lots with? A. From her sister's estate. Q. Who had that money or part of it borrowed from your mother? A. Father. Q. And had he paid it back? A. Yes, sir. Q. What money did he pay it out of. A. Bonus money. Q. Do you know of your father paying that money back? A. Yes, sir. Q. Was it before the lots were purchased? A. Yes, sir. Q. Was it a long time or a short time before? A. Not very long before. Q. Do you know whether it was out of that money that your mother paid for these two lots? A. Yes, sir. Q. Do you know whether your mother kept your father's money, also? Yes, sir. Q. Do you know whether she kept it separate from her own? A. Yes, sir. Q. Did she pay all the money? A. Yes, sir. Q. Did she pay for the first two lots out of her own or your father's? A. Out of father's. Q. Did your mother know anything about the deed being in your father's name? A. Yes, sir. Q. Did your mother make any objections to it? A. Yes, sir. Q. What did your father say in reply. A. He said he would make a different deed; and he didn't get it done. The Court: Did he say to whom he would make the other deed? A. To mother."

On cross-examination she was asked, "Q. You say your mother paid all of the money? A. Yes, sir. Q. There was part of the money out of your father's money and part out of your mother's? A. Yes, sir. Q. Where did your mother keep that money? A. In the pocket books. Q. Keep it in separate books? A. Yes, sir. Q. Do you know which one was his? A. Yes, sir. Q. How much was taken out of his? A. Seven hundred dollars. Q. And how much out of her own? A. Six hundred dollars."

It had been previously proved that on the settlement of her guardian's account she was entitled to receive $783.24, and her guardian, Henry Knouf, testified to the payment by him to her of several sums of money, one of which was $288, besides what he paid her as guardian. This $288 was her share of the dower money which was payable at the death of her grandfather's widow. It was paid to the plaintiff by Henry Knouf who had accepted the land of his father upon proceedings in the orphans' court in partition. He testified also that she was entitled to receive another sum of $130 out of his brother's estate at the death of his second wife. While he did not see that money paid to her he testified positively that she did get it. He testified to another sum of $200 which was loaned to her husband, but which he says was passed to her. He did not know how much she received from her sister's estate, but Louisa Dumbach testified that the $600 which was paid for the two lots in dispute, came from the estate of her sister.

There was therefore an abundance of testimony, and uncontradicted to show that the plaintiff had received from other sources than her husband, much more than enough money to pay for the two lots in dispute. The testimony of Louise Dumbach, if believed by the jury, was entirely sufficient to make out all the requirements necessary to establish a resulting trust. It was direct, positive, certain, unambiguous, clear and satisfactory on the important questions as to the possession of the money and also as to its payment. As to the amount of money and the sources from which it was derived there was no contradiction. As to the payment of the money, Louise Dumbach said it was paid by her mother, and the only witness in contradiction, William Bishop, said it was paid by Mr. and Mrs. Dumbach, without individuating the particular person who handed over the money. This is not a contradiction of Louise Dumbach's testimony, but rather a corroboration of it, inasmuch as she specifically names the one person who actually paid it over, and he does not contradict that statement. It is true he testifies that the money was paid at his house in Evans City, while she says it was at her mother's house, but that is of minor importance since it only concerns the place of payment, and not the fact of...