McDonald v. McAndrew

• Decision Date: 14 July 1909
• Docket Number: 15-1909
• Parties: McDonald v. McAndrew, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 146

McDonald v. McAndrew, Appellant

No. 15-1909

Superior Court of Pennsylvania

July 14, 1909

Argued March 3, 1909 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Lackawanna Co.-1906, No 282, on verdict for plaintiff in case of Mary McDonald v Mary Ann McAndrew.

Ejectment for a lot of land in the city of Scranton. Before Newcomb, J.

The opinion of the Superior Court states the case.

At the trial the court charged in part as follows:

[The plaintiff depends upon the testimony of Mr. Lynn as to what happened at the time of the deed, and seeks to corroborate his testimony by that of herself and her husband as to some alleged admissions claimed to have been made by Mrs. McAndrew since the deed was made. The pinch in the case is, as I have suggested, whether the evidence is clear, precise, certain, convincing and indubitable. Remember that Mr. Lynn is the only witness that undertakes to speak as to what happened at the time when the deed was brought up there, having been prepared by the attorney, and the alderman was called in for the purpose of taking the acknowledgment. Does the plaintiff to your satisfaction bring the parties together at that time and show that a promise was then and there made when the parties to the deed, namely, Mrs. Lynott and her daughter, Mrs. McAndrew, were together in the room where the deed is said to have been signed and evidently was signed and was witnessed by Mr. Lynn? Are you satisfied of that? It seems to me that that is a debatable question. Mr. Lynn himself says in that connection that he took Mrs. McAndrew out in another room and there questioned her with regard to some alleged previous understanding or promise as to what she would do with lot 17, and, as I understand, that after that interview in that room he came back in where the transaction was being consummated and said, " It is all right." That in itself may seem doubtful as tending to show that there was any promise then and there made by Mrs. McAndrew to Mrs. Lynott. I take it that the theory of the plaintiff is and the claim of Mr. Lynn is that the negotiations had been going on for some time before that and it had finally culminated in the offer on the one side and the assurance on the other, the offer being made by Mrs. Lynott, " I will make this deed to you upon condition that you will when Mary [the niece, Mary Franklin] becomes of age convey 17 to her," and that the offer was accepted by the assurance on the part of Mrs. McAndrew that she would do that. Mr. Lynn takes the position as I understand him, but, of course, that is for you and not for me, that when it came time to consummate the thing, for his further personal assurance he took the cousin, Mrs. McAndrew, out into the other room and asked her if she would do that. Of course that might be. If the evidence satisfies you and fully and indubitably convinces you that that is what happened, then of course it would be such a connection between the making of the deed and the promise that it would not affect the continuity of the transaction and it could be said by the jury to form one transaction.]

Defendant presented these points:

1. Under all the evidence in this case, the verdict must be for the defendant. Answer: I am not prepared at this time to say that, and the request is therefore refused.

3. In this case the jury must find some fraudulent act on the part of the defendant through which the title has been obtained, and the evidence of such fraudulent act must be clear, precise and convincing in order to find for the plaintiff. Answer: That is affirmed with the same qualification that it would be a fraudulent act if the defendant procured an estate from her mother upon the assurance that she would do a certain thing with part of it and afterwards faithlessly broke the promise, that would be a fraudulent act.

Verdict and judgment for plaintiff for the land in dispute. Defendant appealed.

Errors assigned were above instructions, quoting them.

Samuel B. Price, for appellant. -- No part of a parol trust can be left to inference; the proof to establish it must in all particulars be clear and specific: Brickell v. Earley, 115 Pa. 473.

Lynn is the only witness, and in such a case as this there must be two witnesses, or corroborating circumstances equivalent to another: Fuller v. Law, 207 Pa. 101; Building Assn. v. Hetzel, 103 Pa. 507; Streator v. Paxton, 201 Pa. 135.

While the parol evidence is admissible to prove fraud and mistake, it is insufficient for that purpose unless clear, precise and indubitable: Pioso v. Bitzer, 209 Pa. 503; McCloskey v. McCloskey, 205 Pa. 491; Reno v. Moss, 120 Pa. 49; Moore v. Small, 19 Pa. 461.

W. L. Houck, of Houck & Benjamin, with him Willard, Warren & Knapp, for appellee. -- When one procures from another a gift of the whole of that other's estate, on a promise to give part of it at death for a special purpose, or to a particular individual, the fulfillment of the moral obligation will be enforced in a court of equity, because to the moral obligation there is added the force of a legal one; the estate of the donor is parted with on the faith of the promise: Hoffner's Est., 161 Pa. 331; Thompson v. White, 1 Dallas, 424; Hoge v. Hoge, 1 Watts, 163; Sheriff v. Neal, 6 Watts, 534; Seichrist's App., 66 Pa. 237; Brooke's App., 109 Pa. 188; McCloskey v. McCloskey, 205 Pa. 491; Jones v. McKee, 3 Pa. 496; Perry v. Livingston, 191 Pa. 349.

As to the evidential weight of the declarations and admissions of the defendant, and their admissibility, we refer to the case of German et al. v. Gabbald, 3 Binney, 301. See also Gregory v. Setter, 1 Dall. 193; Hoge v. Hoge, 1 Watts, 163; Church v. Ruland, 64 Pa. 432.

Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.

OPINION

RICE, J.

This was an action of ejectment. Mary A. Lynott was the owner of two adjoining lots known in the case as Nos. 17 and 18, in a certain block. Eighteen was improved with the dwelling house in which she lived; the other was vacant. She owned no other property of consequence. Some years ago she had devised the property to one of her sons, who had his home with her. January 1, 1905, she broke up housekeeping and went to live with her daughter, the defendant. She was then old, and complained that she was being neglected by the son. She survived about one year after that. The plaintiff is her granddaughter, the child of a deceased daughter. Her maiden name was Mary Franklin. She and a cousin, Edward Lynn, were boarders in defendant's family while Mrs. Lynott lived there. The disposition of her property was discussed by the old lady with some anxiety on various occasions between herself, her daughter, and the nephew, Mr. Lynn. She expressed her desire to alter the will and to devise the property to the daughter and granddaughter. Lynn advised her that she could give it to them by deed. This she eventually decided to do, but at the request of the defendant she conveyed both parcels to her, September 25, 1905, upon the faith of the latter's promise to reconvey No. 17 to her niece, Mary Franklin, upon the latter becoming of legal age. The defendant now denies the promise and refuses to convey.

The foregoing clear, concise and accurate statement of the findings of fact implied in the verdict of the jury is taken from the opinion of the learned trial judge discharging the defendant's rules for new trial and for judgment non obstante veredicto. If the case were governed by the principles of law and evidence applicable to an ordinary action at law, it would scarcely be pretended that the evidence adduced by the plaintiff, if believed by the jury was not sufficient to sustain the findings and the verdict based thereon. But although the action, in form, was an action at law, it was in reality a substitute for a bill in equity brought to have declared, and to enforce, a trust ex maleficio, and was governed by the same principles. " It is not the substitution of twelve unlearned chancellors for a lawyer prepared for his office by the lucubrations of twenty years. The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any evidence reasonably tending to prove a fact must be submitted to be passed upon by that tribunal. The conscience of the judge as chancellor must be satisfied, and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of conflicting testimony. What is this but the trial of a feigned issue out of chancery? If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the jury either by a nonsuit or a binding direction in his charge, as the case may require: McBarron v. Glass, 30 Pa. 133; Todd v. Campbell, 32 Pa. 250; Bennett v. Fulmer, 49 Pa. 155; Miller v. Hartle, 53 Pa. 108:" Church v. Ruland, 64 Pa. 432. These principles were clearly recognized and brought before the jury in the following as well as in other parts of the charge: " The sole question in the case that you have to determine is this: Did the defendant procure the deed for the two lots 17 and 18 from her mother, Mrs. Mary Lynott, upon the faith of a distinct promise to convey lot 17 to her niece, and is it a fact that without the promise the mother would not have given the deed? That is the issue. That is what the plaintiff asserts and that is what she must prove in order to warrant the jury in finding a verdict in her favor. And she must prove it by more than a fair preponderance of evidence, which is the rule governing ordinary civil suits tried in this court. A fair preponderance of the evidence would be of no value to her...