Phila. Trust Co., Ex'r of Cummings v. Phila. & Erie R.R.

• Decision Date: 02 April 1894
• Docket Number: 437
• Parties: Phila. Trust Co., Ex'r of Cummings, v. Phila. & Erie R.R., Appellant
• Court: Pennsylvania Supreme Court

28 A. 960

160 Pa. 590

Phila. Trust Co., Ex'r of Cummings, v. Phila. & Erie R.R., Appellant

No. 437

Supreme Court of Pennsylvania

April 2, 1894

Argued January 8, 1894

Appeal, No. 437, Jan. T., 1893, by defendant, from judgment of C.P. No. 1, Phila. Co., June T., 1891, No. 841, on verdict for plaintiff, as executor of A. Boyd Cummings, deceased. Reversed.

Assumpsit to recover amount of principal and interest on railroad bonds. Before BIDDLE, J.

The facts appear by the opinion of the Supreme Court.

Binding instruction for plaintiff was given. [1]

Verdict and judgment for plaintiff for $62,833.32.

Error assigned, among others, was above instruction.

George Tucker Bispham, A. H. Wintersteen with him, for appellant. -- The question of Cummings's ownership of the bonds and coupons, under the evidence, was for the jury: Baggalley v. Jones, 1 Campbell, N.P. 367; Willies v. Farley, 3 C. & P. 395; Peaceable v. Watson, 4 Taunt. 16; Tilghman v. Fisher, 9 Watts, 441; Maples v Browne, 46 Pa. 458; Child v. McKean, 2 Miles, 192; Duerson's Adm'r v. Alsop, 27 Gratt. 229.

If Cummings ever held the bonds for value, the presumption arising from lapse of time, together with the other circumstances in evidence, made a case for the jury on the question of payment: Mayor of Kingston v. Horner, 1 Cow. 102; Hughes v. Hughes, 54 Pa. 240; King's Exr. v. Coulter's Exr., 2 Grant, 77; Diamond v. Tobias, 12 Pa. 312; Briggs's Ap., 93 Pa. 485; Peters's Ap., 106 Pa. 340; Hess v. Frankenfield 106 Pa. 443.

In any aspect of the case plaintiff was entitled to recover no more than the principal of the bonds and the amount of such coupons as matured within twenty years prior to bringing suit: Emlen v. Lehigh Coal & Nav. Co., 47 Pa. 76; North Pa. R.R. v. Adams, 54 Pa. 94; P. & R.R.R. v. Smith, 105 Pa. 195; Friend v. Pittsburgh, 131 Pa. 305; Lash v. Von Neida, 109 Pa. 207; Summerville v. Holliday, 1 Watts, 507; Huey v. Macon Co., 35 F. 481; Amy v. Dubuque, 98 U.S. 470; Koshkonong v. Burton, 104 U.S. 668; City v. Lamson, 9 Wall. 477; City v. Butler, 14 Wall. 282; Clark v. Iowa City, 20 Wall. 583; P. & R.R.R. Co. v. Fidelity Co., 105 Pa. 217.

Richard L. Ashhurst and William H. Armstrong, Robert H. Neilson with them, for appellee. -- The address upon the envelope was not a circumstance from which any inference whatever could be drawn: Gilmore's Est., 158 Pa. 186; Roberts's Ap., 85 Pa. 84.

When parties set up title against a deed absolute in its terms, the burden of proof is upon them to show that it was intended only as a security for a debt; and if parol evidence be relied on for that purpose, it must be clear and convincing: Todd v. Campbell, 32 Pa. 250; Lingenfelter v. Richey, 92 Pa. 123; Bank v. Frankish, 91 Pa. 339; Smith's Ap., 144 Pa. 428.

It is submitted that, so far from it being settled law, as stated by appellant's counsel, that long unexplained delay will of itself suffice to put plaintiff on proof of consideration upon notice, the well settled rule is otherwise: Knight v. Pugh, 4 W. & S. 445; Holme v. Karsper, 5 Bin. 469; Swain v. Ettling, 32 Pa. 486; Hartman v. Shaffer, 71 Pa. 312; Gray v. Bank, 29 Pa. 365; Phelan v. Moss, 67 Pa. 59; Sloan v. Union Banking Co., 67 Pa. 470; Lerch Hardware Co. v. First Nat. Bank of Columbia, 109 Pa. 240; Brown v. Street, 6 W. & S. 221; Conmey v. McFarlane, 97 Pa. 361; Commissioners v. Clark, 94 U.S. 278; Mason v. Frick, 105 Pa. 162; Williamsport Gas Co. v. Pinkerton, 95 Pa. 62.

Whether the presumption arising from lapse of time is rebutted by a given state of facts is a question of law for the court: McQuesney v. Hiester, 33 Pa. 435; Beale v. Kirk, 84 Pa. 415; Reed v. Reed, 46 Pa. 239; Hughes v. Hughes, 54 Pa. 240; Gregory v. Com., 121 Pa. 611; Weidler v. Bank, 11 S. & R. 134; Bank of the United States v. Dunn, 6 Pet. 51; Henderson v. Anderson, 3 How. 73; Saltmarsh v. Tuthill, 13 How. 229; United States v. Liffler, 11 Pet. 86; Gaul v. Willis, 26 Pa. 259; Howard Express Co. v. Wile, 64 Pa. 201; Battles v. Laudenslager, 84 Pa. 446; Unangst v. Kraemer, 8 W. & S. 391; Tilghman v. Fisher, 9 Watts, 441; Diamond v. Tobias, 12 Pa. 312.

In King v. Coulter, 2 Grant, 77, 81, decedent owed a debt to defendant on simple contract contemporaneously with the running of the sealed note in question.

Hughes v. Hughes, 54 Pa. 240, is a case strongly in our favor. The defence relied, among other things, on the alleged good circumstances of the debtor and poverty of the creditor during the time elapsed.

In Briggs's Appeal, 93 Pa. 485, there was a receipt offered in evidence of which the language was so ambiguous as to leave in doubt whether it applied to the whole amount of the award or only to a payment of interest on it.

In Hess v. Frankenfield, 106 Pa. 440, besides other persuasive evidence of payment, there was a release made seven years after the judgment and twelve before suit brought, which might well be construed to include the claim in dispute.

Appellant does not refer to Rogers v. Burns, 27 Pa. 525, and Morrison v. Collins, 127 Pa. 28. Both these were cases in which circumstances not really persuasive were held rightly excluded from the jury.

It is well settled that the lapse of time, less than twenty years, without other persuasive evidence of payment, cannot be submitted to the jury, and that it is error to so submit it: Henderson v. Lewis, 9 S. & R. 379; Murphy v. Trust Co., 103 Pa. 379.

No presumption of payment can arise in the face of the positive testimony that the coupons were paid: Reed v. Reed, 46 Pa. 239.

The cases of Huey v. Macon Co., 35 F. 481; Amy v. Dubuque, 98 U.S. 470, and Koshkonong v. Burton, 104 U.S. 68, were decided upon statutes of limitations of Missouri, Iowa, and Wisconsin, which, by their terms, govern those cases.

The presumption of payment, which the law allows at the expiration of twenty years after a debt becomes due, is an act of tenderness towards the debtor, which is sustained by the absence of evidence, but, like other presumptions, it must yield to any circumstances and facts on which the mind can rest satisfied and by which it is rebutted: Eby v. Eby, 5 Pa. 435; Effect of Lapse of Time on Suits in Equity, 32 Am. Law Reg. 329; City v. Lamson, 9 Wall. 477; Lexington v. Butler, 14 Wall. 282; Meyer v. Porter, 2 Pac. R. 884.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The plaintiff sued to recover from defendant the principal and interest on twenty-four $1,000 bonds issued in 1857 by the Sunbury and Erie Railroad Company, which last-named company had, by legislative enactment, been changed to the Philadelphia and Erie Railroad. There was no denial by defendant of its obligation to pay the bonded indebtedness of the Sunbury and Erie Company. The only real contention, in view of the evidence, it seems to us, was, whether plaintiff or defendant was the owner of the bonds. Plaintiff was in possession, and offered them in evidence; defendant denied plaintiff's testator's right to the possession of them, and alleged they belonged to the Sunbury and Erie Railroad Company, to whose rights it had succeeded. The learned judge of the court below, being of opinion that defendant had adduced no sufficient evidence to rebut the presumption of title in plaintiff necessarily raised by the possession of the bonds, peremptorily directed a verdict against defendant for the principal and interest, which at date of trial amounted to $62,833.32. Judgment having been entered on this verdict, defendant brings this appeal, assigning for error the refusal of the court to submit the evidence, as to the ownership of the bonds, to the jury.

The possession of the bonds was prima facie evidence of title. Should the evidence, offered by defendant to rebut the inference warranted by the possession, have been submitted to the consideration of the jury?

This evidence is circumstantial, and must be viewed as a whole; if, when so viewed, it be not inconsistent with the presumption of ownership warranted by the possession, the learned trial judge was right in directing a verdict for plaintiff; in that case, then, there was no evidence of ownership in defendant to rebut the inference of ownership derived from possession. And this inconsistency must be such as may fairly bring the mind to an opposite conclusion from that warranted by the possession.

A. Boyd Cummings, at his death on March 1, 1891, was in his eighty-second year; he had been enterprising and successful in business, was possessed of a personal estate valued at nearly a half million dollars; besides, was the owner of considerable valuable real estate. The personal securities were deposited in many places; about two years before his death, at the suggestion of a friend, he collected them all together, and placed them in a box with the Philadelphia Trust and Safe Deposit Company; they consisted of a large number of different notes, stocks, bonds and mortgages; were carefully scheduled by number, denomination and name, and were safely kept with that company until his death. These twenty-four Sunbury and Erie bonds were not among them. For many years preceding his death, in the winter, he lived with Mrs. Glass, at 910 Pine street Philadelphia; he occupied a room on the third story, in which he had an old-fashioned desk. After his death, his executor found these bonds in that desk; there were in it no other papers of value. The bonds were in a sealed envelope, addressed: "Philadelphia and Erie Railroad, 233 South 4th street, Philadelphia." The address was not in the handwriting of Mr. Cummings, nor is it shown whose is the handwriting. On the envelope were three ten-cent postage stamps, uncancelled, of a date of issue not before 1882. The bonds bear date the 10th of ...