Reed v. Mellor

• Decision Date: 05 November 1888
• Docket Number: 223
• Citation: 16 A. 80,122 Pa. 635
• Parties: N. P. REED v. L. P. MELLOR
• Court: Pennsylvania Supreme Court

16 A. 80

122 Pa. 635

N. P. REED v. L. P. MELLOR

No. 223

Supreme Court of Pennsylvania

November 5, 1888

Argued October 18, 1888

ERROR TO THE COURT OF COMMON PLEAS OF BUTLER COUNTY.

No. 223 October Term 1888, Sup. Ct.; court below, No. 30 June Term 1886, C.P.

On March 18, 1886, an action of ejectment was brought by Louisa P. Mellor against Nelson P. Reed, to recover a lot of ground on Main street in the borough of Butler. The defendant pleaded, not guilty.

At the trial on April 6, 1887, the evidence was closed on both sides, when the parties by a paper filed agreed to dispense with a trial by jury, and to submit the cause to the decision of the court upon the evidence taken, under the provisions of the act of April 22, 1874, P.L. 109.

On June 3, 1887, the court, McMICHAEL, J., filed the following decision:

The facts of the case are found as follows:

Charles C. Sullivan, Esq., was in his lifetime, and at the time of his death, seised of several tracts and parcels of land among which was a piece of land containing about two and three fourths acres, situate in the borough of Butler, in Butler county, Pa. This piece includes the lot now in controversy. On January 29, 1860, Charles C. Sullivan made his last will and testament, wherein and whereby, amongst other things, he devised and bequeathed as follows: "All my estate, real and personal, wherewith it has pleased God to bless me, I hereby will and bequeath to my executor hereinafter named, Charles McCandless, to hold the same and to convert the same, as soon as practicable, into money, as hereinafter described, and then pay the proceeds over to my wife, Susan Catharine, to be held by her as guardian of our children, and used in such judicious manner as she may deem most beneficial to herself and said children. And I do hereby appoint my said wife, Susan Catharine Sullivan, sole guardian of our five children, having full confidence she will take good care of their interests in this world, and educate them carefully in reading and studying the Scriptures of Truth and in following their precepts all their lives. I further do authorize my said executor to sell and make deeds for all such portions of my real estate as he may deem it most to the interest of my said estate, to make sale of the same on terms of four equal annual payments, with the usual interest."

Some small legacies were bequeathed to other persons, which are not important to be noticed in this case, and Charles McCandless was appointed executor. On March 3, 1860, after the death of Mr. Sullivan, this will was duly probated, and letters testamentary thereon were granted to the executor named therein.

The testator left surviving him his widow, Susan C. Sullivan, and five children, whose names, with the dates of their births, as near as the evidence shows those dates, are as follows: Charles A., born in June, 1846; Moses, born in November, 1847; Louisa, born in May, 1849; Josephine, born in May, 1852; and Matilda, born in November, 1853. All these survivors are still living.

On December 11, 1861, Charles McCandless, as executor of the will, made a deed to Mrs. Susan C. Sullivan, individually, for all the lands of which the testator died seised, wherever located in the county of Butler, and which at the time of making the deed had not been sold by the executor, and also for all the land which the executor had contracted to sell, but for which he had not then made deeds. The consideration mentioned in this deed is "the sum of one dollar, and the further consideration that by the last will and testament of said Charles C. Sullivan, deceased, she is the sole devisee, except certain exceptions therein contained." There were a number of pieces of land, houses and lots which had not then been sold by the executor, and which were therefore included in the general description in this deed, and intended to be conveyed by it. Among them was the piece containing two and three fourths acres, of which the lot in suit is a part. It does not appear that Charles McCandless did anything as executor after this deed was made. The object appears to have been to pass to Mrs. Sullivan the entire estate as it then was, under the belief or supposition that she was personally entitled to it under the will, and that the executor should perform no further duties.

Since the making of this deed Mrs. Sullivan has sold or conveyed away all the real estate, which was conveyed or intended to be conveyed to her by it. She testifies that she educated her children by means of the proceeds, but did not pay over any of the proceeds to them.

In 1873, Charles A. Sullivan, the eldest son of the testator, took possession of the lot in suit, and before October, 1874, built on it a house, barn and outbuildings, at a cost of between $10,000 and $12,000. The evidence does not show what the contract or arrangement was under which he took possession, but it is evident that he understood that he was to be the owner of it. In October, 1874, just after the house was finished, he moved into it and occupied it with his family as his individual residence from that time until April, 1886. On June 7, 1877, his mother, Mrs. Susan C. Sullivan, made a deed to him for this lot, on which he then resided. The consideration mentioned in this deed is $2,700, but there was in fact no money paid by Charles to his mother for the lot.

While Charles A. Sullivan was building the house on this lot, the other four children of the testator were living at home with their mother, in Butler, and knew the fact that he was so building. They knew of his residing on this property, and the two older ones, Moses and Louisa, and probably all four of them, were at home at the time the deed was made by Mrs. Sullivan to Charles, though they were not consulted about the making of it. At the time this deed was made they were all of age. Matilda, the youngest, became of age in November, 1874.

On June 11, 1877, Charles A. Sullivan executed a mortgage of this lot to Andrew C. Taggart, which was recorded the same day. It was given to secure the payment of $5,600 in three years after date, with interest, payable semi-annually. This mortgage was on June 12, 1877, assigned by Andrew C. Taggart to Louisa P. Mellor, the plaintiff. At the time this mortgage was given and the money received for which it was given, Moses Sullivan, one of the children of Charles C. Sullivan, attended to the matter for his brother, Charles A. Sullivan, received the draft for the money borrowed, knew of the transaction and was an attesting witness to the assignment of the mortgage by Mr. Taggart to the plaintiff.

A scire facias was issued on this mortgage to No. 60 June Term 1883, and on December 22, 1885, a verdict was rendered in favor of the plaintiff, and on January 8, 1886, a judgment was entered in her favor in the case for $6,623.17. A levari facias was issued on this judgment, and on March 1, 1886, the plaintiff purchased the lot in suit, at the sheriff's sale under this writ, for $6,500, and received therefor a sheriff's deed, duly acknowledged on March 3, 1886.

This mortgage when it was recorded was the first lien on this lot against Charles A. Sullivan.

There was a judgment entered by the Butler Savings Bank against Charles A. Sullivan, Moses Sullivan and Susan C. Sullivan, in the Court of Common Pleas of Butler county, on February 20, 1883, for $3,127. On this judgment execution was issued, under which the sheriff sold the property in suit to Nelson P. Reed, the defendant, on September 7, 1885, for $500, and a sheriff's deed was duly acknowledged and delivered to the defendant, on September 9, 1885. On the same day a quit-claim deed was executed by the several children of Charles C. Sullivan, deceased, including Charles A. Sullivan, for the lot in suit, to Nelson P. Reed, the defendant. This deed was signed by Matilda Duncan (nee Sullivan), but not by her husband, who is living, as it appears.

There is no evidence that Andrew C. Taggart or Louisa P. Mellor had any notice or knowledge at the time the money was loaned to Charles A. Sullivan, and the mortgage before mentioned was taken, that he had not paid to his mother any part of the $2,700 consideration money mentioned in the deed from his mother to him. That deed and the record of it contained a receipt by the grantor for the purchase money in full. It was recorded June 6, 1877.

It is admitted that the defendant is now in possession of the property in dispute.

These are all the facts which are proved by the evidence and believed to be pertinent to the issue. Do they entitle the plaintiff to recover? No doubt the will of Charles C. Sullivan vested the legal title to his real estate in Charles McCandless, his executor, and so far as the beneficiaries under his will are concerned, it worked an equitable conversion of all his realty into personalty. To this both parties agree; and here their agreement ends.

The plaintiff claims that under the will of Charles C. Sullivan his wife became the absolute owner in her own right of the proceeds of his entire estate which remained after paying debts, funeral expenses, expenses of administration and other legacies; and, having taken from the executor a deed for the lands instead of the proceeds, she acquired thereby a title to the lands in her own right, as a purchaser, and had full power to convey them, and hence her deed to Charles A. Sullivan gave him a perfect title, which he could, and did, mortgage. This is the substance of plaintiff's fourth point. On the other hand, the defendant claims that Mrs. Sullivan was entitled to the proceeds of her husband's estate only as guardian of her children, and not in her own right; and, if she could and did take any title to this lot by means of the deed from ...