Fidelity Insurance Trust & Safe Deposit Co. v. Moore
| Decision Date | 12 February 1900 |
| Docket Number | 426 |
| Citation | 45 A. 423,194 Pa. 617 |
| Parties | The Fidelity Insurance Trust and Safe Deposit Company, Joseph F. Sinnott and Walton Pennewill, Executors and Trustees of Andrew M. Moore, deceased, Appellants, v. Albert H. Moore |
| Court | Pennsylvania Supreme Court |
Argued January 30, 1900
Appeal, No. 426, Jan. T., 1899, by plaintiffs, from judgment of C.P. Montgomery Co., Oct. T., 1898, No. 30, on verdict for defendant. Reversed.
Ejectment for a tract of land in Colmar township. Before WEAND, J.
The facts are fully stated in in the opinion of the Supreme Court.
The court refused to give binding instructions for the plaintiffs.
Verdict and judgment for defendant. Plaintiffs appealed.
Error assigned among others was refusing to give binding instructions for plaintiffs.
The judgment is reversed.
And now March 5, 1900, on consideration of foregoing opinion, it is ordered that judgment be entered for plaintiffs for land described in writ of ejectment.
Montgomery Evans, with him Simpson & Brown, for appellants. -- The court should have directed the jury to find a verdict in favor of the plaintiffs: Todd v. Campbell, 32 Pa. 250; McGinity v. McGinity, 63 Pa. 38; Church v Ruland, 64 Pa. 432; Faust v. Haas, 73 Pa. 295; Burger v. Dankel, 100 Pa. 113; Huoncker v Merkey, 102 Pa. 462; Null v. Fries, 110 Pa. 521; Reno v. Moss, 120 Pa. 49; Hess v. Calender, 120 Pa. 138; Wylie v. Mansley, 132 Pa. 65; Saunders v. Gould, 134 Pa. 445; Silliman v. Haas, 151 Pa. 52; Gilchrist v. Brown, 165 Pa. 275; Sample v. Herlacher, 177 Pa. 247; Williams v. Milligan, 183 Pa. 386; Olinger v. Shultz, 183 Pa. 469; Kegerreis v. Lutz, 187 Pa. 252; Bowen v. Haupt, 192 Pa. 406.
Where a son goes into possession of his father's land and makes improvements, a jury is not to infer from that, in the absence of other evidence, that the father gave him the land; neither are loose declarations of the father to his neighbors, in casual conversations, calling it his son's property, without any explanation how it came to be his, sufficient evidence of a gift. Still less are such things evidence of such a parol sale as a chancellor would have decreed the specific performance of: Hugus v. Walker, 12 Pa. 173; Moore v. Small, 19 Pa. 461; Rankin v. Simpson, 19 Pa. 471; Railroad v. Knowles, 117 Pa. 77; Shellhammer v. Ashbaugh, 83 Pa. 24.
The declarations of the father as to the son's ownership, made in the absence of the son, should have been excluded: Poorman v. Gilgore, 26 Pa. 365; Ackerman v. Fisher, 57 Pa. 457; Edwards v. Morgan, 100 Pa. 330; Moyer's App., 105 Pa. 432; Allison v. Burns, 107 Pa. 50; Burgess v. Burgess, 109 Pa. 312; McKowen v. McDonald, 43 Pa. 441.
N. H. Larzelere, with him M. M. Gibson and G. R. Fox, for appellee. -- The disputed facts arising upon the testimony have been settled by the verdict adversely to appellant's contention and in favor of the appellee.
The facts undisputed and those established by the verdict have "satisfied the mind and conscience of the court sitting as chancellor," in accordance with the rule laid down in Olinger v. Shultz, 183 Pa. 474; Galbraith v. Galbraith, 190 Pa. 227.
But, if the facts alleged are sufficient, is satisfactorily established, yet the evidence in relation to them is conflicting, or the credibility of witnesses is involved, and the conflicting testimony is of such a character that he can conscionably sustain a verdict either way, as the jury may find, the case should go to the jury with careful instructions, to turn upon their finding of disputed facts: Light v. Zeller, 144 Pa. 604.
The declarations and confessions of the alleged trustee may be given in evidence: Gregory v. Setter, 1 Dall. 193; German v. Gabbald, 3 Binn. 302; Williard v. Williard, 56 Pa. 124.
Before GREEN, C.J., McCOLLUM, DEAN, FELL and MESTREZAT, JJ.
The plaintiffs brought ejectment against defendant for a farm of 189 acres at Colmar, Montgomery county. At the trial, they showed a complete legal title in defendant's father, their testator. Defendant claimed the equitable title under a trust resulting in his favor from payment by him of the purchase money. The evidence tending to establish the trust was submitted to the jury by the court below. The verdict was for defendant. The court having entered judgment on it, we have this appeal by plaintiffs, who allege, there was no evidence legally sufficient to establish a resulting trust, and therefore, the court erred in not directing a verdict for plaintiff.
It seems to us, if a rule of law, in its application to the more or less varying facts in this class of cases, can be said to be settled, its application in this case must be undoubted, in view of the facts before us. In the latest case, Olinger v. Shultz, 183 Pa. 474, the present Chief Justice says: -- He then cites quite a list of the later cases in this state, where the rule has been enforced, all of which, as well as those of much earlier date, amply vindicate his statement of the rule. A reference to Olinger v. Shultz, supra, is all this case demands by way of authority.
Let us then review the facts proved in the court below, and see if they stand the test of this settled rule. The negotiations for the purchase of the property were initiated and carried on by defendant, Albert H. Moore. In what capacity, or for whom did he act? For himself, or for his father? The article of agreement is dated October 22, 1888, and was made with C. Todd Jenkins, the owner; it purports to be made with the father, although signed by A. H. Moore, without the addition of the word agent to his signature; but in the body of the agreement, he uses these words: -- "A. H. Moore executes this agreement in behalf of his father, Andrew M. Moore." The consideration for the farm is $26,000, to be paid, practically, $5,000, cash, and balance payable in one year, to be secured by mortgage. At the time of the contract, the farm was incumbered by three mortgages, amounting altogether to $12,800. About ten days after the agreement, Jenkins met the father and made with him a settlement or adjustment of the purchase money: about this date, probably a day or two before, the son had given his check to Jenkins for $5,000 of the hand money. The receipt given reads: "Recieved of Andrew M. Moore by the hands of A. H. Moore, his check to the order of C. Todd Jenkins for $5,000 on account of the purchase money for the farm in Montgomery township." For the balance of the purchase money, the father settled, leaving due and unpaid to Jenkins, $8,200, for which sum he gave to Jenkins his personal bond secnred by his mortgage on the farm, and took the deed in his own name. The son went into possession, and at once commenced making very expensive improvements to render the farm suitable to horse breeding purposes. He did breed and rear upon it, blooded horses. The project, evidently, was not a financial success; the son had no means of his own: from the date of the purchase until his death on January 26, 1898, the father paid bills incurred for improvements on the farm, and for stock and other expenses, the sum of $741,000. He also paid the taxes from year to year, and his executors continued to pay them after his death. The plaintiff's evidence, showed in them, both a complete legal and equitable estate; so far as we have stated them, not a single essential fact is wanting to make out their right to possession. But, defendant alleges, that a trust in the land results in his favor, because: -- 1. All the bargaining for the property was done by him. 2. All the cash paid at the date of the contract, when the father took the conveyance in his own name, was paid by him, the son. 3. The buying out of the tenant then in possession, and payment of money to him, were by the son. 4. He went into possession as owner, made such improvements as he chose, and in every particular, treated the property as his own. 5. All the buildings were insured in the son's name. 6. All the contracts were made by the son, and paid for by him. 7. He never rendered any account to his father, nor did the father regard him as a tenant. 8. The father declared to third parties, that he held title in trust for his son.
Before considering the facts averred in this statement, the first inquiry that suggests itself to the mind, is, what were the relations of the parties? For if they were merely landlord and tenant at will, the conduct of the landlord is absurdly inconsistent with such a purely business relation. That a man will pay $26,000 for a farm, put a tenant upon it, permit the tenant for ten years to enjoy all its benefits without once asking him to...
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