McCreary v. Bomberger

• Decision Date: 03 October 1892
• Docket Number: 5
• Citation: 24 A. 1066,151 Pa. 323
• Parties: McCreary, Appellant, v. Bomberger
• Court: Pennsylvania Supreme Court

24 A. 1066

McCreary, Appellant, v. Bomberger

151 Pa. 323

No. 5

Supreme Court of Pennsylvania

October 3, 1892

Argued May 30, 1892

Appeal, No. 5, May T., 1892, by plaintiff, John McCreary from judgment for defendant non obstante veredicto, of C.P Dauphin Co., June T., 1891, No. 433, on verdict for plaintiff.

Scire facias sur mortgage with notice to Commonwealth Guarantee Trust & Safe Deposit Co., trustee, and John E. Patterson, guardian ad litem of minor heirs, devisees under will of Lewis Bomberger, deceased.

The facts appear by the opinion of the Supreme Court.

The court charged the jury as follows:

"This case raises questions of law which will have to be determined by the court hereafter when we have more leisure to consider questions of that kind than we now have while trying cases. Therefore, it is not necessary for us to detain you in the case now.

"We instruct you to render a verdict in favor of the plaintiff for the amount in controversy. This verdict will be subject to the reserved question whether there is any evidence in the case which warrants a verdict for the plaintiff. If there is, the verdict will stand. If not, judgment will hereafter be entered in favor of the defendant notwithstanding the verdict."

Verdict for plaintiff. Subsequently the court entered judgment in favor of the defendant non obstante veredicto, in the following opinion by SIMONTON, P.J.:

"Counsel for the plaintiff contends, in the first place, that Sarah Bomberger took a fee in the real estate mortgaged, under the terms of the will above quoted. We have carefully examined the cases cited by him in support of this position but cannot find anything in them to sustain it. The devise is expressly 'for and during her natural life;' and the expression 'so much thereof as may remain unexpended' in the devise over could not have the effect of enlarging the life estate into a fee, nor could the power given to sell the real estate, 'the proceeds to be reinvested or secured by other real estate subject to the same condition,' have this effect. We must therefore hold for the purposes of this case, that Sarah Bomberger took only a life estate.

"The second position taken by counsel for the defendant is that if Sarah Bomberger took only a life estate, then at the time of the execution of the mortgage, the fee was vested in Michael Bomberger, trustee, subject to the life estate, and that he had power to join in the mortgage. The legal title to the fee was doubtless vested in him as trustee, but as there were no active duties to be performed by him it was a mere dry trust, and the entire beneficial interest was vested in the cestui que trustent, and therefore the equitable estate was fully vested in them: Kay v. Scates, 37 Pa. 31; Yarnall's Ap., 70 Pa. 335; and the trustee had no power to sell or encumber it without their consent.

"As Ann Bomberger has also died, the whole interest in this real estate is vested in the children of Ann and Michael Bomberger, who are named in the petition asking for the appointment of the Trust Company as trustee, which was given in evidence; and it may well be doubted whether we have in this proceeding proper parties before us to enable us, in any view we might take of the law, to render a judgment which would be binding upon these children. The trust being, as we have already stated, a dry trust, the fee is really in them, and they are either minors or have not been served with process in this case, and it may well be doubted whether they are in court by the appearance of the trustee. In this state of the case we should hesitate very much before we would, in any view we might take of the questions considered, enter judgment in favor of the plaintiff; this, however, is not material as, in our opinion, for the reasons above stated the interest of the owners of the fee was not bound by the mortgage, and therefore judgment must be entered in favor of the defendant non obstante veredicto; which is accordingly ordered."

Plaintiff thereupon appealed.

Errors assigned were (1) in entering judgment, for defendant non obstante veredicto, as there was no question of law reserved upon any fact agreed to by the parties or ascertained by the verdict; (2) in ruling that there was no evidence in the case that warranted a verdict for the plaintiff and in granting the motion for judgment in favor of defendant non obstante veredicto.

The judgment is reversed, and it is now ordered that judgment be entered for the plaintiff upon the verdict.

Wm. B. Lamberton, for appellant. -- There was no proper reservation of a point of law. The judge cannot draw conclusions of fact from evidence and enter judgment thereon non obstante veredicto: Wilde v. Trainor, 59 Pa. 439; Miller v. Hershey, 59 Pa. 64; Winchester v. Bennett, 54 Pa. 510; Inquirer Co. v. Rice, 106 Pa. 623; Buckley v. Duff, 111 Pa. 223; Campbell v. O'Neill, 64 Pa. 290; Keifer v. Eldred Twp., 110 Pa. 1; Patton v. R.R., 96 Pa. 173; North Am. Oil Co. v. Forsyth, 48 Pa. 291; Chandler v. Ins. Co., 88 Pa. 223.

The court cannot withdraw from the jury the decision of the fact whether under all the evidence in the cause the plaintiff is entitled to recover: Clark v. Wilder, 25 Pa. 314; Wilson v. Steamboat Tuscarora, 25 Pa. 317; Smith v. Arsenal Bank, 104 Pa. 518; Miller v. Bedford, 86 Pa. 454; Buckley v. Duff, 111 Pa. 223; Central Bank of Pittsburgh v. Earley, 113 Pa. 477; Henry v. Heilman, 114 Pa. 499; Miller v. Bedford, 86 Pa. 454; Fayette City v. Huggins, 112 Pa. 1.

It is immaterial what interest Sarah Bomberger took in the real estate. She was expressly given by the will a power to sell the real estate, which included the power to mortgage it, and the mortgage was well executed: Zane v. Kennedy, 73 Pa. 192; Duval's Ap., 38 Pa. 113; Penna. Co. for Ins. etc. v. Austin, 42 Pa. 257; McAleer's Ap., 99 Pa. 138; Fidelity Ins. Trust etc. Co. v. Wurfflein, 15 W.N. 28; Wurfflein v. Haines, 14 W.N. 76; Duval's Ap., 38 Pa. 113; Magraw v. Pennock, 2 Grant, 89.

The fact that Sarah Bomberger sealed the mortgage personally, and not as executrix, will not prevent its execution being referred to the power of sale, if that is necessary to carry out the intent of the parties: Jones v. Wood, 16 Pa. 25; Hay v. Mayer, 8 Watts, 203; Krieder v. Lafferty, 1 Wharton, 315; Rebeno v. Marlatt, 6 Pa. C.C.R. 251; Wynkoop v. Wynkoop, 10 W.N. 65; Allison v. Kurtz, 2 Watts, 188; Miner's Ap., 61 Pa. 283; Lancaster Bank v. Myley, 13 Pa. 544; Tyler v. Moore, 42 Pa. 374.

Sarah Bomberger had a right to expend the corpus of the estate: Postlethwaite's Ap., 68 Pa. 477; Follweiler's Ap., 102 Pa. 581; Rewalt v. Ulrich, 23 Pa. 389; Cod v. Rogers, 77 Pa. 160; Diehl's Ap., 36 Pa. 120; Silknitter's Ap., 45 Pa. 365; Straub's Ap., 1 Pa. 86; Pennock's Est., 20 Pa. 268; Jauretche v. Proctor, 48 Pa. 466; Norris v. Rawle, 16 W.N. 240; Presbyterian Church v. Disbrow, 52 Pa. 219; Gittleman's Ap., 3 Walker, 270.

The joinder of its trustee in the mortgage bound the remaindermen: Act of July 24, 1834, P.L. 73; Blight v. Wright, 1 Phila. 549; Brown and Sterrett's Ap., 27 Pa. 62; Parkinson's Ap., 32 Pa. 455; Gast v. Porter, 13 Pa. 533; Styer v. Freas, 15 Pa. 339; Coover's Ap., 74 Pa. 143; Hamlin v. Thomas, 126 Pa. 20; the trust was an active one: Bacon's Ap., 57 Pa. 504; Watson's Ap., 125 Pa. 340; Eachus's Ap., 91 Pa. 105; Keene's Est., 81 Pa. 133; Fidelity Co.'s Ap., 5 W.N. 513.

Samuel J. M. McCarrell, for appellee. -- No exception was taken to the manner in which the question of law was reserved. The court will therefore not consider the insufficiency of the reservation: Mohan v. Butler, 112 Pa. 596; Ins. Co. v. Phoenix Co., 71 Pa. 31; Koons v. Telegraph Co., 102 Pa. 164; Headley v. Renner, 129 Pa. 544.

There is nothing to show that Sarah Bomberger intended to exercise the power conferred upon her by the will. She signed the mortgage in her own name and not as executrix, and the mortgage contains no reference to the power. In Wynkoop v. Wynkoop, 10 W.N. 65, there was an express recital of the power.

There was no power in the trustee to bind the heirs at the time the mortgage was executed: Hay v. Moyer, 8 Watts, 203; Sweigart v. Frey, 8 S. & R. 299.

Lancaster v. Dolan, 1 Rawle, 231, and Zane v. Kennedy, 73 Pa. 191, cited by appellant, are not analogous to the case. In Zane v. Kennedy, there was an express consent in writing by the cestui que trust.

Before PAXSON, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. CHIEF JUSTICE PAXSON:

The learned judge below instructed the jury to find a verdict for the plaintiff subject to the reserved question whether there was any evidence in the case to sustain such verdict. Subsequently he entered judgment for the defendant non obstante veredicto.

The learned judge was of the opinion that Sarah Bomberger took but a life estate in the land in question under the will of her husband, Lewis Bomberger. The will, so far as it applies to the present case, is as follows:

"I give, devise, and bequeath to my beloved wife, Sarah Bomberger, my house and lot in which I now reside, and all the household furniture and other items belonging to me not herein particularly mentioned; to have and to hold the said messuage and appurtenances and goods and chattels for and during her natural life; and at the death of my said wife all the property hereby devised and bequeathed to her as aforesaid, or so much thereof as may remain unexpended, I give and devise unto my son Michael Bomberger in trust for his wife, Ann Bomberger, and their heirs; and further, if at any time it should be deemed advantageous to dispose of said house and lot, my said executrix, or, in the event of her death, the said aforenamed trustee is hereby authorized and empowered to sell and dispose of...