Muntz v. Whitcomb

• Decision Date: 14 July 1909
• Docket Number: 3-1909
• Parties: Muntz v. Whitcomb, Appellant
• Court: Pennsylvania Superior Court

40 Pa.Super. 553

Muntz v. Whitcomb, Appellant

No. 3-1909

Superior Court of Pennsylvania

July 14, 1909

Argued April 13, 1909 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Warren Co.-1906, No. 52 on verdict for plaintiff in case of Anthony Muntz v. Clarence W. Whitcomb.

Ejectment for thirty-eight acres of land in Corydon township. Before Lindsey, P. J.

At the trial it appeared that the defendant, Clarence W. Whitcomb on June 16, 1902, executed and delivered a deed for the land in question, to the plaintiff, Anthony Muntz. Whitcomb had an interest in the land under a deed dated January 21, 1889, from Charles Whitcomb and wife, his parents, to himself. Defendant's mother survived her husband and died on November 23, 1906.

Mr. Ball: Counsel for plaintiff offers in evidence the deed, together with the record thereof, from Charles Whitcomb and Laura J. Whitcomb, to Clarence W. Whitcomb, bearing date January 21, 1889, acknowledged January 21, 1889, consideration recited $ 1,500. Recorded November 29, 1892.

Mr. Arird: What is the purpose?

Mr. Ball: Offered for the purpose of showing title in the plaintiff and that the deed is from the common source of title.

Objected to for the purpose stated and objected to as incompetent and irrelevant, and objected to as showing title in the plaintiff.

Mr. Ball: Counsel for plaintiff also offers in evidence a deed, and the record thereof, from Clarence W. Whitcomb to Anthony Muntz, bearing date June 16, 1902, acknowledged the same day, consideration recited $ 1,500, recorded the same day, in deed book 89, p. 795.

Mr. Arird: We ask the purpose.

Mr. Ball: Offered as an instrument in the line of title, for the purpose of showing title in the plaintiff.

Objected to as incompetent and irrelevant.

The Court: Objection overruled for the present and exception sealed for defendant.

Mr. Arird: We offer to show by this witness and others, the declarations and acts of the grantee at the time of the execution of the deed and before the execution of the deed from Clarence W. Whitcomb to Anthony Muntz, tending to show misrepresentations and fraud by the grantee in procuring the execution of the deed. To be followed with proof that prior to the execution of the deed that Anthony Muntz stated to the defendant that he would pay not only the consideration mentioned in the deed, but he would pay the excess value mentioned in the deed of about $ 1,200. Further, that he would pay a judgment entered in the court of common pleas of Warren county, No. 211, December Term, 1900, wherein Anthony Muntz was plaintiff, and Clarence W. Whitcomb was defendant, for the sum of $ 116.48, and that he would pay other indebtedness of Clarence W. Whitcomb, and that since the execution and delivery of the deed he has neglected and refused to pay these and that Clarence Whitcomb, the witness and defendant, would not have executed the deed if it had not been for the acts and declarations made by Anthony Muntz to the defendant. This for the purpose of showing fraud on the part of the grantee.

And further to be followed by evidence showing the value of the property transferred was largely in excess of the value mentioned in the deed.

Objected to for the reason that the offer does not show anything that constitutes fraud and as incompetent and irrelevant.

The Court: Objection sustained and exception sealed for defendant.

Mr. Arird: We propose to show the instrument in writing, offered by the plaintiff, was not delivered to Clarence W. Whitcomb, but was found after the death of Charles Whitcomb, his father. This for the purpose of showing that the title was not in the defendant but simply the right of possession as trustee in trust for others.

Objected to as incompetent, the offer not showing that Anthony Muntz, the grantor in the deed, knew or was informed at the time of his purchase of the alleged nondelivery of the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and for the reason that the defendant is estopped from such showing by the recital in the deed, and generally as incompetent and irrelevant.

The Court: Objection sustained and exception sealed for defendant.

Mr. Arird: I will make the same proposition with the addition that Anthony Muntz, the plaintiff, knew that the deed was not delivered at the time of Charles Whitcomb's death. For the purpose of showing that this defendant simply had a right of possession as trustee in trust for others.

Plaintiff presented these points:

1. The rule in Shelley's case applies to the deed from Charles Whitcomb and Laura J. Whitcomb to Clarence W. Whitcomb, and said Clarence W. Whitcomb took a title under said deed in fee simple to the lands described therein, subject to the life estates of the grantors, said Charles Whitcomb and Laura J. Whitcomb, reserved to them in said deed. Answer: This point is affirmed.

2. Under all the evidence in the case the verdict of the jury must be for the plaintiff for the land described in the writ. Answer: This point is affirmed. We therefore instruct you, gentlemen, that under the facts and the law in the case your verdict should be rendered for the plaintiff. There is no question of fact for you to pass upon and you therefore can render your verdict in your seats, and the prothonotary will take your verdict for the plaintiff.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions; above instructions.

D. U. Arird, for appellant. -- The paper was testamentary in character: Wood v. Schoen, 216 Pa. 425; Diehl's Est., 11 Pa.Super. 293; Coulter v. Shelmadine, 204 Pa. 120; Kisecker's Est., 190 Pa. 476.

D. I. Ball, for appellee. -- In the case now before the court, the estate granted by the deed vested immediately in Clarence W. Whitcomb. The right to the use and possession of the premises was reserved to the grantors until the termination of the life estate at their death: Anspach v. Lightner, 31 Pa.Super. 218; Book v. Book, 104 Pa. 240; Cable v. Cable, 146 Pa. 451; Knowlson v. Fleming, 165 Pa. 10; Eckman v. Eckman, 68 Pa. 460.

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

OPINION

HENDERSON, J.

A large part of the argument on behalf of the appellant is in support of the proposition that the instrument offered in evidence by the plaintiff from Charles Whitcomb and Laura J. Whitcomb, his wife, to the defendant dated January 21, 1889, is not a deed for the conveyance of land, but a will, and that not having been proved as a will it did not transfer the title to the land therein described from the said Charles Whitcomb and wife to the defendant. This position is said to be supported by the line of cases holding that whatever the form of the instrument may be if it vest no present interest but only directs what is to be done after the death of the maker it is testamentary. There are numerous precedents which hold that, even where the instrument is in form a deed, if the manifest purpose is that it shall not take effect until after the death of the person making it, it shall operate as a will and not as a conveyance. Turner v. Scott, 51 Pa. 126, is a case of this class, as is also Harrison's Estate, 196 Pa. 576, 46 A. 888, to which the counsel for the appellant refers. It will be observed, however, on examination of the first of these cases that although the instrument was in form a deed of conveyance it contained an express proviso that the conveyance was in no way to take effect until after the death of the grantor and the estate was distinctly limited to take effect after his decease. Because of this provision it was decided that the instrument expressed a disposition of the property to take effect after the death of the maker and not before. No vested interest passed to the grantee in the lifetime of the grantor. The instrument was testamentary, therefore. In Harrison's...