Lewars v. Weaver

• Decision Date: 01 October 1888
• Docket Number: 150
• Citation: Lewars v. Weaver, 121 Pa. 268, 15 A. 514 (Pa. 1888)
• Parties: J. S. LEWARS v. JACOB WEAVER AND WIFE
• Court: Pennsylvania Supreme Court

15 A. 514

121 Pa. 268

J. S. LEWARS v. JACOB WEAVER AND WIFE

No. 150

Supreme Court of Pennsylvania

October 1, 1888

Argued April 9, 1888

ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY.

No. 150 January Term 1887, Sup. Ct.; court below, No. 88 September Term 1883, C.P.

On June 13, 1883, a scire facias sur mortgage was issued in favor of James S. Lewars, administrator of Joseph Clewell, deceased against Jacob Weaver and Abigail Weaver, his wife, with notice to terre-tenants, to recover upon a mortgage executed by the defendants to the said deceased, dated February 13 1878, upon real estate the property of said Abigail Weaver to secure the sum of $500, payable February 13, 1879. The mortgagee died in 1882, and letters of administration were granted to said Lewars. The plea was, "non est factum with leave to give the special matter in evidence."

On May 11, 1885, counsel agreed by writing filed to dispense with trial by jury and to submit the decision of the cause to the court, under the provisions of the act of April 22, 1874, P.L. 109. ^[*]

At the trial on May 20, 1885, the plaintiff put in evidence the mortgage, dated February 13, 1878, purporting to have been duly acknowledged the same day before Lewis Yetter, notary public, with a separate examination rested.

The defendants then called Charles Weaver, a son of Fayen Weaver:

Q. What was it that your grandfather said to your grandmother, about signing the paper? Objected to.

By the court: Objection overruled.

Q. Did Lewis Yetter tell your grandmother what kind of paper it was? A. No, sir. Q. Did anybody? A. No, sir. Q. Did your grandmother read the paper? A. No, sir. Q. Did anybody read it to her? A. No, sir. Q. Your grandmother signed the paper after she had been asked to? A. Yes, sir. Q. Who was in the room when she signed the paper? A. All of us. Q. Was there any time while 'Squire Yetter was there that your grandfather went out of the room? A. No, sir. Q. After your grandfather and grandmother had signed the paper, what was done with it? A. Yetter put it in his pocket. Q. And then what happened? What did Yetter and your father do after that? A. They wanted them to stay for dinner, but they didn't do it, and they went right home on the next train to Catawissa. Q. Were you in the room all the time that Yetter and your father and grandfather and grandmother were there? A. Yes, sir. Q. Did you go back to school that forenoon? A. No, sir. Q. Did you ever see your father and Mr. Yetter there before or after? A. No, sir. Q. They were never there but once? A. No, sir; yes, sir; yes, they was never there but once. Q. What room was it that they were in, all you there together? Q. What room was it that they were in, all you there together? A. The kitchen.

Q. Now, I ask the question, what Mr. Jacob Weaver said to Mrs. Weaver, his wife, about signing the paper? Objected to.

By the court: In the presence of Yetter?

Mr. Freeze: In the presence of Yetter; to be followed by inquiry whether what he said to her was what Yetter said to him about having her sign the paper.

Mr. Rhawn: We object, because Mr. Clewell was not there,

Mr. Rhawn: We object, because Mr. Clewell was not there, was not present, and, generally, because it is incompetent and irrelevant.

Mr. Freeze: We think it relevant testimony in this view of it, that, whether Clewell was there or not, Yetter was there as his agent, acting for him and transacting this business; and, so far as anything that was said or done by Yetter in the transaction of it was concerned, it would be testimony as well as if Clewell himself had been there.

By the court: Is the mortgage in the handwriting of Yetter?

Mr. Freeze: Yes, sir, in the handwriting of Yetter and witnessed by Yetter and Fayen Weaver.

Mr. Rhawn: There is no evidence that Yetter was acting as the agent of Clewell, nor would there be any inference of that fact from the evidence that the mortgage is in the handwriting of Yetter, but, on the other hand, the presumption would be a violent one that he was acting as the agent of the mortgagors, from the manner in which he went there.

By the court: We will overrule the objection and hear the evidence; we will be able to draw our inferences after we hear it all. to

Q. Now, Charles, what was it that Yetter asked your grandmother to do? A. Why, he asked her to sign it. Q. Then what did your grandfather say to her? A. He told her. Q. Do you remember what he said to her? A. He told her that Yetter said she should sign the paper. Q. Did he say that in German or not? A. German; she can't understand any English, hardly, at all. Q. It was after that then that she signed it? A. Yes, sir.

Other testimony of this witness is considered in the Opinion of the Court.

The defendants then put in evidence deed from Stephen Baldy and wife to Abigail Weaver, dated March 30, 1867, for the land embraced in the mortgage, and followed by calling W. L. Eyerly, one of defendants' counsel, who testified:

I knew Clewell in his lifetime, had conversation with him in relation to this mortgage debt here, did business for him. I don't recollect the day, but I recollect we talked about it. He was desirous of collecting the money; and, if my recollection is correct, and I think it is, he told me that the amount of money owing on this was not a debt of Mrs. Weaver but of Fayen; and then he went on to explain it; he said that he loaned Fayen Weaver some money on promissory notes, and wanted to secure them, and had this mortgage executed to secure those notes; told me so possibly two years before he died, on several occasions. I know that to be the fact, that Fayen Weaver was indebted to him, Clewell.

The case being closed on the evidence, the plaintiff presented for instruction the following points:

1. That the evidence of Charles Weaver is not sufficient to impeach the certificate of Lewis Yetter, a notary public, showing the acknowledgment to be in due form of law.

2. That, there being no evidence in the case that Joseph Clewell, the mortgagee, knew of the alleged fraud practiced on Abigail Weaver, one of the mortgagors, at the time the mortgage was given, judgment should be directed to be entered for the plaintiff.

3. That under all the evidence in the case the plaintiff is entitled to recover.

On July 10, 1885, the court, ELWELL, P.J., filed his decision, which after stating the caption of the proceeding, the plea, and the submission, proceeded:

This cause came on for trial before the president judge May 20, 1885, where the evidence herewith filed was given from which the following is found as the facts in the case: The suit is a scire facias upon a mortgage dated February 13, 1878, executed by Jacob Weaver and Abigail, his wife, upon one acre of land in Catawissa township in Columbia county, to secure the payment of five hundred dollars described as the real debt, with interest, on February 13, 1879. The scire facias was issued on June 13, 1883. It appears by mortgage book vol. 9, from the recorder's office of Columbia county, on page 620, etc., that the mortgage is there recorded purporting to have been executed and duly acknowledged by Jacob Weaver and Abigail, his wife, upon the lands, for the consideration and as security, and payable, as set forth in the scire facias; the said mortgage having been recorded on February 16, 1878. It appears by deed of Stephen Baldy and wife to Abigail Weaver dated March 30, 1867, that she was the owner of the land described in the mortgage in her own right. It appears by the recitals in the mortgage, or rather it is recited therein, that the mortgage was given to secure the payment of a bond of the said Abigail for $1,000, bearing even date with the mortgage for real debt $500, and payable as hereinbefore stated. The certificate of the acknowledgment of the mortgage was signed by Lewis Yetter, a notary public, and certified with his official seal, and is as follows:

"Be it remembered that on the 13th day of February, 1878, personally appeared Abigail Weaver and Jacob Weaver, her husband, who I am satisfied are the grantors mentioned in the foregoing deed or conveyance, and I having first made known the contents thereof, they acknowledged that they signed, sealed and delivered the same as their voluntary act and deed; and she, the said Abigail Weaver, wife of said Jacob Weaver, being of full age, on a private examination apart from her husband, before me acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, freely without any fear, threat or compulsion of her said husband. All of which is certified. LEWIS YETTER, N.P. [OFFICIAL SEAL.]"

With the foregoing, and the admission that Joseph Clewell, the mortgagee, died before November 10, 1882, and that letters of administration were on that day granted to James Lewars, the plaintiff here, the testimony on his behalf in chief was closed. On the part of the defendants, it was shown, as before stated, that the land described in the mortgage was conveyed to Abigail Weaver in 1867. It was testified by Charles Weaver, a grandson of Jacob and Abigail Weaver, now sixteen years old, a bright, intelligent and apparently truthful young man, that he was present when the mortgage was signed and heard what passed between the parties there present, in reference to the execution of the mortgage.

In accordance with his testimony and reasonable inferences from the facts stated, it is found that the facts were as follows:

FINDINGS OF FACT.

[On February 13, 1878, Lewis Yetter, a scrivener and notary public, was employed by Joseph Clewell to obtain a mortgage from Jacob Weaver and Abigail, his wife, on property of the wife, for the sum of five hundred dollars.]

On that day, Mr. Yetter and Fayen Weaver went...