Moran v. Munhall
| Decision Date | 05 January 1903 |
| Docket Number | 127 |
| Citation | 204 Pa. 242,53 A. 1094 |
| Parties | Moran v. Munhall, Appellant |
| Court | Pennsylvania Supreme Court |
Reargued January 27, 1902
Appeal, No. 127, Oct. T., 1901, by defendants, from judgment of C.P. No. 2, Allegheny Co., Jan. T., 1900, No. 721, on verdict for plaintiff, in case of Patrick Moran v. Annie M Munhall and R. J. Munhall, Administrators of Michael Munhall Deceased. Affirmed.
Assumpsit for money had and received for plaintiff's use. Before FRAZER, P.J.
At the trial the jury returned a verdict for plaintiff for $4,310.33, subject to the question of law reserved, whether there is any evidence which entitles the plaintiff to recover. On a motion for judgment non obstante veredicto FRAZER, P.J., filed the following opinion:
The verdict in this case was in favor of plaintiff, subject to the question of law reserved, to wit: "whether there is any evidence which entitles the plaintiff to recover." The plaintiff's testimony showed that on September 21, 1896, he being the owner of a lot of ground situate in the twentieth ward of the city of Pittsburg, having a front of sixty feet on Fairmount avenue, and extending back 162 feet to an alley, upon which was erected a two and one half story brick dwelling house, conveyed the same to Michael Munhall, by a deed absolute upon its face, the consideration named being $10,100; that the amount expressed in the deed as the consideration was made up as follows: Mortgage in favor of Pennsylvania Company for Insurance on Lives, etc., $8,000; note of plaintiff held by defendant, $1,500, and note given at the time by defendant to plaintiff for $600, payable in one and one half years after date; that the title to the property remained in the name of Mr. Munhall until August 1, 1899, when he sold and conveyed it to Charles H. Stolzenbach, for the sum of $16,000. It further appeared that plaintiff and his family continued to occupy the premises until after the sale to Stolzenbach without paying rent therefor to Munhall; that during the time he did, however, pay part of the interest due on the mortgage of the Pennsylvania Company for Insurance, etc., the city and county taxes, assessed against the property for the years 1896 and 1897, laid a flagstone sidewalk on Fairmount avenue, paid same insurance, and made certain repairs to the house, the aggregate of these payments being $1,252.97.
The testimony also showed that, at the time of the conveyance to Munhall, it was understood and agreed between Munhall and Moran that the property was to be sold as soon as possible, and any surplus remaining after payment of all amounts due Munhall should be paid by Munhall to Moran; that both Munhall and Moran were active in their efforts to secure a purchaser, and that after the sale was made to Stolzenbach, Munhall sent to Moran the sum of $500, which sum Moran says was to be credited on the amount due him. After deducting from the $16,000 paid by Stolzenbach, the Pennsylvania Company's $8,000 mortgage, Munhall's claims against Moran and all payments made on account of the property by Munhall while he held title to it, there remains a balance of $3,923.84 in excess of the consideration of $10,100, named in the deed from Moran to Munhall. This amount Moran claims is due him under his agreement with Munhall, and this suit was brought to recover the same. Mr. Munhall having died since the beginning of this suit, the testimony of the plaintiff and his wife was in the shape of depositions taken upon a rule, during the lifetime of Mr. Munhall. The defendants offered no testimony, but claimed that the Act of June 8, 1881, P.L. 84, which provides that a defeasance to an absolute deed to be effectual must be in writing, is a bar to plaintiff's right to recover, and asked for binding instructions. It seems to us that act does not apply to this case. There is no effort here to turn the absolute deed into a mortgage, neither was it contended by plaintiff that the deed was meant as a security for the payment of the indebtedness due by Moran. On the contrary, his claim is, that upon the execution of the deed, the indebtedness was canceled. There was no understanding to reconvey or hold the premises in trust for plaintiff. The property was to be sold as soon as possible, and to that end each party was to exert himself, and, in the event of a sale for a sum in excess of an amount sufficient to pay all of Munhall's claims against the property, the surplus was to be paid over to Moran, for the purpose of enabling him to pay other individual creditors. With that understanding the conveyance was made to Munhall.
It seems to us that the property was purchased by Munhall, not because he wanted it, but for the purpose of protecting himself and also of assisting his friend Moran, who was at the time in financial distress; and to that end, and also as an inducement to plaintiff to exert himself in procuring a purchaser, plaintiff was to receive all surplus above Munhall's outlay. He was also to occupy the premises until a sale could be made, and pay all, or, at least, a portion of the interest, taxes, insurance and expenses chargeable to the property. The note for $1,500 of plaintiff, which Munhall held, was canceled and delivered up. Under these circumstances we think we are justified in reaching the conclusion that the act of 1881 is not applicable to this case, and that plaintiff is entitled to recover. This conclusion we think is in line with the principles laid down in Goodwin v. McMinn, 193 Pa. 646.
And now, July 20, 1901, it is ordered that judgment be entered on the verdict.
Error assigned was in entering judgment on the verdict.
W. A. Way, for appellants. -- The plaintiff is seeking to convert an absolute deed into a mortgage, contrary to the provisions of the Act of June 8, 1881, P.L. 84: Huoncker v. Merkey, 102 Pa. 462; Null v. Fries, 110 Pa. 521; Lance's App., 112 Pa. 456; Danzeisen's App., 73 Pa. 65; Harper's App., 64 Pa. 315.
If this transaction does not amount to a mortgage, it does amount to an attempt to enforce a trust in real estate, which under the provisions of the 4th section of the Act of April 22, 1856, P.L. 532, must be in writing: Gaines v. Brockerhoff, 136 Pa. 175; Barry v. Hill, 166 Pa. 344; Williard v. Williard, 56 Pa. 119; Watson v. Watson, 198 Pa. 234; Braum v. First German Evangelical Lutheran Church, 198 Pa. 152.
The evidence does not rise high enough to convert this deed into a mortgage or a deed of trust: Goodwin v. McMinn, 193 Pa. 646; Burr v. Kase, 168 Pa. 81; Rankin v. Simpson, 19 Pa. 471; Nicolls v. McDonald, 101 Pa. 514; Umbenhower v. Miller, 101 Pa. 71; Burger v. Dankel, 100 Pa. 113.
A. V. D. Watterson and A. B. Reid, for appellee. -- There was neither a mortgage nor a trust involved in this transaction. The relation between the parties was one of ordinary contract: Lance's App., 112 Pa. 467; Lacy v. Kynaston, 2 Salk. 575; Simmons v. Ins. Co., 8 W.Va. 474; Wilson v. Pearl, 12 Pa.Super. 66; Holmes's App., 79 Pa. 279; Jack v. Dougherty, 3 Watts, 151; Audenreid's App., 89 Pa. 114; Schotte v. Meredith, 192 Pa. 159.
Parol evidence is admissible to show that an additional consideration is to be paid by grantee from a subsequent sale made by him, or upon the happening of a contingency not specified in the deed: Clark v. Deshon, 66 Mass. 589; Nickerson v. Saunders, 36 Me. 413; Kickland v. Menasha Wooden-Ware Co., 68 Wis. 34 (31 N.W. 471); Rabsuhl v. Lack, 35 Mo. 316; McConnell v. Brayner, 63 Mo. 461; McKinster v. Babcock, 26 N.Y. 378.
The act of 1881 does not forbid the proving of a contemporaneous parol agreement for the payment of an additional consideration not mentioned in the deed. It is the reduction of the deed into a mortgage which it forbids: Molly v. Ulrich, 133 Pa. 41.
Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
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