Rigler v. Cloud

• Decision Date: 01 January 1853
• Citation: 14 Pa. 361
• Parties: Rigler versus Cloud.
• Court: Pennsylvania Supreme Court

14 Pa. 361

Rigler versus Cloud.

Supreme Court of Pennsylvania.

ERROR to the District Court at Philadelphia.

W. L. Hirst, for plaintiff in error.—That the appointment of the trustee, was nisi, conditional upon his giving security: Act of 14th June, 1836, relating to assignees, section 26.

2. That the mere acknowledgment of a deed is not sufficient, if rebutted by the fact of continued possession of the land and of the deed by the donor. At least, it is for the jury to decide.

3. That the husband succeeds, under the intestate act of April 8, 1833, to the estate of his wife for life.

4. That the deed was not proved, and was void for want of two subscribing witnesses.

Rush, for defendant.—As to 1st point: that the act of 14th June, 1836, refers to assignees and trustees, for the benefit of creditors. The plaintiff below was appointed under the act of 14th April, 1828, to "prevent failure of trusts."

As to 2d point, 1 Ser. & R. 72; 1 Dal. 63 and 93.

As to 3d point, as to the right of plaintiff to hold as tenant by curtesy: 4 W. & Ser. 95; 1 Vesey 298; Co. Lit. 29, a, ch. 4.

4th. That a deed is good without subscribing witnesses: 1 Ser. & R. 72. The act of 18th March, 1775, authorizes one witness; and the deed in this case is in accordance with its provisions.

The opinion of the court was delivered by COULTER, J.

Rigler has not the shadow of interest as tenant by the curtesy. The clause in the deed made by him to Catharine George, in trust for his wife, effectually shuts him out. That clause is as follows: "To the use and benefit of Maria Rigler, (wife of the said Henry Rigler,) and her heirs for ever, so that the same shall not be subject, in any wise, to the future control, debts, or liabilities of her present or any future husband." It conveys an estate for her sole and separate use, free and clear of all claims, incidents, or liabilities consequent upon the marital state.

This case is not within the class which require trustees to give security in court, under the act of 14th June, 1836. The original appointment of trustee is made by the grantor of the estate, and not by the fiat of the law. In certain contingencies, every trustee may be compelled to give security, or be removed from his office.

Cloud, the present trustee, was appointed, merely because Catharine George, through age and other circumstances, had become incapable of discharging the trust. Neither the original appointment, nor the appointment of Cloud by the court, was void for want of surety. The crowning fact, in the execution of a deed, is its delivery. But it is not necessary to prove the actual manual investiture. The delivery may be inferred or presumed from circumstances. Thus, the signing, attested by witnesses, the acknowledgment by the grantor, and the recording of the deed have been considered full prima facie evidence of delivery. All these circumstances were present in this case. But it is contended that the acknowledgment was made out of the State, before the Mayor of Trenton, in New Jersey, and duly certified by him, and recorded, where the land lies, in Philadelphia county.

It is to be observed that it is the person who made the deed, the grantor, and the person who acknowledged it, who now,...