Oaks Fire Co. v. Herbert

• Citation: 389 Pa. 357,132 A.2d 193
• Parties: OAKS FIRE COMPANY, Appellant, v. R. Sheldon HERBERT, The DeKrafft Corporation, Spring Garden Fuel Company, Ross P. Whitemarsh and Rebecca G. Whitemarsh.
• Decision Date: 29 May 1957
• Court: Pennsylvania Supreme Court

Page 193

132 A.2d 193

389 Pa. 357

OAKS FIRE COMPANY, Appellant, v. R. Sheldon HERBERT, The DeKrafft Corporation, Spring Garden Fuel Company, Ross P. Whitemarsh and Rebecca G. Whitemarsh.

Supreme Court of Pennsylvania.

May 29, 1957.

William L. Huganir, Norristown, for appellant.

Desmond J. McTighe, Duffy, McTighe & McElhone, Lawrence A. Brown, Norristown, for R. Sheldon Herbert, Ross P. Whitemarsh, Rebecca G. Whitemarsh.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BELL, Justice.

This is an appeal from a decree of the Equity Court of Montgomery County overruling plaintiff's exceptions to the Court's adjudication in an action to quiet title. Plaintiff owns a tract of ground in Montgomery County which was conveyed to it by the Commissioners of Montgomery County on June 1, 1953. The Commissioners of Montgomery County had received title on February 23, 1943 through two sales of the premises conducted on February 1, 1940 and December 8, 1941, for unpaid taxes.

On July 6, 1953, plaintiff brought this action to quiet title in order to have two mortgages given by Frank Macomb Gumbes in the principal amounts of $6,500 and $9,000, respectively, satisfied of record. Plaintiff named as defendants, inter alia, two heirs of the original mortgagor. One heir, Rebecca G. Whitemarsh, is the only child and daughter of Frank Macomb Gumbes; the second heir, R. Sheldon Herbert, is the granddaughter and only grandchild of Frank M. Gumbes. After issue was joined, a trial without a jury was held. The lower Court discharged the lien of the $6,500 mortgage and the defendant filed no exception thereto, so that the $9,000 mortgage alone is the subject of this appeal.

The sole legal issue raised in the case at bar is whether the evidence offered by defendants was sufficient to rebut the presumption of payment of the $9,000 mortgage.

On June 8, 1903, Frank M. Gumbes executed a mortgage of $9,000, payable in one year, to the Norristown Trust Company, secured on premises at Oaks, Montgomery County, Pennsylvania. The property was called 'Broadview' by the mortgagor and his family. The mortgage was assigned successively to the following assignees: (a) To The Pennsylvania Company for Insurances on Lives and Granting Annuities, on July 30, 1929; (b) To Frank S. Coffin, also known as Franklin S. Kauffin, on January 24, 1942; (c) To Rebecca G. Whitemarsh, on March 8, 1945; (d) To Maxine C. Anderson, on July 27, 1948; and (e) To R. Sheldon Herbert, on April 22, 1950. The receipts, disbursements, records and files of The Pennsylvania Company pertaining to this $9,000 mortgage were destroyed in accordance with the policy of that Company to maintain its files for a period of only 10 years. Moreover, the mortgagor, Frank Macomb Gumbes, died in 1945 and his wife, Rebecca M. Gumbes, died in 1946. Frank S. Coffin is also deceased.

The crucial factual issue revolves around two alleged receipts which referred to interest payments on the $9,000 mortgage. Rebecca G. Whitemarsh, daughter of Mr. and Mrs. Frank Macomb Gumbes, (the original mortgagor) was administratrix of the estate of Rebecca M. Gumbes. She testified that she found the receipts in question among the papers of Rebecca M. Gumbes. The trial Judge believed her and admitted the receipts into evidence over the objections of the plaintiff. The first receipt, written on the mortgagee's letterhead, was handwritten and read as follows:

'F. S. Coffin

Carpenter & Builder

4907 Cedar Avenue

Philadelphia, Pa.

Dec. 15 1942

'Received from Rebecca M. Gumbes Dec. 1, 1942 (the sum of four hundred and fifty (45000 dollars on account of Interest on $9,000--mortgage, covering property at Oaks, Montg. Co. Penna. The same to be used in alteration and repairs etc. on property.

/s/ F. S. Coffin'

'The second receipt stated:

'January 15, 1945

'Received the above date five hundred and forty ($540.00) dollars from Francis M. Gumbes representing interest for 1945 on Broadview, Oaks, Pennsylvania, mortgage.

/s/ Frank S. Coffin

________'

The trial Judge, as mentioned supra, admitted the receipts into evidence and held that the evidence offered by the defendants was sufficient to rebut the presumption of payment of the mortgage and consequently refused to discharge the lien of the $9,000 mortgage. Plaintiff's exceptions to the adjudication were overruled by the Court en banc.

The law applicable in the instant case is well established. In Engemann v. Colonial Trust Co., 378 Pa. 92, at pages 95-97, 105 A.2d 347, at page 349, 48 A.L.R.2d 858, this Court thus summarized the pertinent legal principles:

'In Corn v. Wilson, 365 Pa. 355 at pages 358, 359, 75 A.2d 530 at page 532, this Court said: 'There is a long established presumption that a mortgage, as well as all evidences of debt excepted out of the Statute of Limitations, unclaimed and unrecognized for 20 years, has been paid. (Citing cases.) This presumption of payment after a lapse of 20 years is a strong one and is favored in law as tending to the repose of society, the protection of the debtor, and the discouragement of stale claims. (Citing cases.)

"The presumption of payment may be rebutted only by clear, satisfactory and convincing evidence beyond that furnished by the specialty itself, that the debt has not been paid, or by proof of circumstances tending to negative the likelihood of payment and sufficiently accounting for the delay of the creditor. (Citing cases.)

"Moreover, whether the facts and evidence relied upon to rebut the presumption of payment are true is a question of fact for the jury; but whether, if true, they are sufficient to rebut the presumption, is a question of law for the court. (Citing cases.)'

'While the presumption of payment increases in strength with the passage of years (after the first twenty) and is likewise, strengthened by the death of the debtor: In re Frey's Estate, 342 Pa. 351, 354, 21 A.2d 23; Gilmore to use of v. Alexander, 268 Pa. 415, 422, 112 A. 9, 11; * * * Cannon v. Hileman, 229 Pa. 414, 78 A. 932; Gregory v. Commonwealth, 121 Pa. 611, 15 A. 452, 453; long lapse of time plus evidence sufficient to raise a presumption of payment cannot prevail against positive credible evidence of nonpayment: In re Snyder's Estate, 368 Pa. 393, 397, 84 A.2d 318; In re Grenet's Estate, 332 Pa. 111, 2 A.2d 707.

'In Grenet's Estate, supra, * * * Mr. Justice, now Chief Justice, Stern said in 332 Pa. at pages 113, 114, 2 A.2d at page 707: 'Appellant relies upon the proposition that recovery was barred by the lapse of twenty-six years between the time when the note was payable and when it was presented at the audit.

"The presumption of payment arising from lapse of time does not work an extinguishment of the debt, nor, unlike the bar of the statute of limitations, does it require a new promise or its equivalent to revive it. It is a presumption merely of fact, and amounts to nothing more than a rule of evidence which reverses the ordinary burden of proof and makes it incumbent upon the creditor to prove * * * that the debt was not actually paid. * * *"

It is our opinion that the two receipts mentioned above were properly admitted into evidence and showing a payment of interest, were sufficient to rebut the presumption of payment.

In Engemann v. Colonial Trust Co., 378 Pa., at pages 97-98, 105 A.2d at page 350, supra, the Court said:

'Moreover, admissions by the mortgagor (to the mortgagee or even to a stranger) that the mortgage had not been paid are admissible even though made more than 20 years after the mortgage became due, provided they are made within 20 years before suit is brought: In re Frey's...