Saunders v. Gould

• Decision Date: 05 May 1890
• Docket Number: 247
• Citation: 19 A. 694,134 Pa. 445
• Parties: O. P. SAUNDERS, TO USE, v. S. M. GOULD
• Court: Pennsylvania Supreme Court

19 A. 694

134 Pa. 445

O. P. SAUNDERS, TO USE, v. S. M. GOULD

No. 247

Supreme Court of Pennsylvania

May 5, 1890

Argued March 24, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 247 January Term 1889, Sup. Ct.; court below, No. 48 December Term 1886, C.P. No. 3.

On November 19, 1886, Oscar P. Saunders brought ejectment against Samuel M. Gould for the premises No. 928 South Fifth street, Philadelphia. The defendant pleaded not guilty. On March 1, 1887, the plaintiff conveyed the premises sued for to Mary Tilden Wagner, and on June 8, 1887, filed a suggestion of this conveyance and marked the suit for her use.

At the trial, on November 12, 1888, the following facts were shown:

The title to the premises in dispute was vested on February 3 1873, in Charles W. Hepburn. Prior thereto, liens had been entered against the property in the order stated and in favor of the parties named below:

1. Mortgage, W. L. Brown, $6,000.

2. Judgment, James Allen, $500.

3. Judgment, J. Alexander Simpson, $650.

4. Mortgage, Silas Betts, $1,200, and judgment for same debt on the accompanying bond.

5. Judgment, J. Alexander Simpson, $500.

6. Judgment on bond accompanying Brown mortgage, No. 1.

On February 3, 1873, under an execution issued upon the judgment, No. 5, in favor of Simpson, this property was exposed to sale by the sheriff and knocked down to Henry F Hepburn for $100, who also purchased other properties at a sheriff's sale made on April 7, 1873. Under an arrangement subsequently made, Samuel M. Gould was returned as the purchaser of these several properties and sheriff's deeds for them were made and delivered to him. He permitted Charles W. Hepburn to collect the rents upon them until May 26, 1874, after which Gould received the same.

There was a large amount of evidence for the defendant that the transaction with Gould, although apparently on its face a purchase by him, was in reality a mortgage for a loan made by him to Charles W. Hepburn, negotiated by H. F. Hepburn, as C W. Hepburn's attorney, Gould advancing $4,000, less a discount of ten per cent, holding the sheriff's deed as security for its repayment by C. W. Hepburn, and giving him an agreement, which was not placed upon record, engaging to re-convey upon payment of the loan with interest. Substantially the same testimony upon this point was given as that stated in the report of a former action of ejectment between Gould and Saunders: Saunders v. Gould, 124 Pa. 237. In addition, there was testimony tending to show that Charles W. Hepburn procured the sheriff's sales to be made; that the purchase money thereon was paid to the sheriff with his money, prior to the making of any advances by Gould; that at the time of the first advance C. W. Hepburn executed a judgment note for $10,000, in favor of Gould, intended to cover that and such subsequent loans as might be made, which was entered on December 3, 1873, and that Gould recognized this judgment by signing a release of lien and by satisfying it on December 1, 1875; and entries in Gould's diary, and a letter written by him to H. F. Hepburn on January 27, 1883, tending to show that the transaction was a loan, were produced.

Gould, however, testified in denial of the allegation of a loan, to the same effect in substance as his testimony stated in 124 Pa. at page 240. He testified also that he knew nothing of the $10,000 judgment, though he afterwards stated that he had been told by H. F. Hepburn that a judgment for $10,000 had been entered for his protection, and upon being shown his signatures to the release of lien and the satisfaction of the judgment, he stated that they looked like his writing but he knew nothing about the matter, and might have made the signatures under H. F. Hepburn's direction, without asking any questions; that H. F. Hepburn was his friend, attended to various matters of business for him, and often made business arrangements for him without previously consulting him.

At the time of the sheriff's sale of the property in dispute, the money due upon the judgments, Nos. 2 and 3 in the list of liens above given, had been made by a sale of other property in December, 1872, under an execution issued upon the Simpson judgment, No. 5; the sheriff had paid out the money, and his private docket contained a receipt therefor, dated January 5, 1873. There was no evidence that Gould was aware of this fact when he received the title to the property in controversy, and those judgments were then standing upon the record unsatisfied. The records were brought before the court by the following general offer:

Mr. Scollay, for the defendant: Under all these judgments I shall claim the right to offer such dockets as relate to them, and I offer them now, so as to be able to read any docket relative to the case.

Mr. Bedell: I object to the dockets unless they are to supply lost records.

By the court: That is proper, and I will say that I think you have got them all in, Mr. Scollay.

In December, 1879, the Betts judgment was revived against C. W. Hepburn, and in December, 1882, a levy thereunder was made upon the property No. 928 South Fifth street, and also upon another of the properties embraced in the transaction between Hepburn and Gould. Gould thereupon filed a bill in equity in the Court of Common Pleas No. 1 of Philadelphia county, against the plaintiff in the judgment, the two Hepburns and the sheriff, praying inter alia for an injunction against the sale of the properties so levied on. The bill, as well as an injunction affidavit made by Gould in support thereof, averred that he held the title originally as security for a loan to C. W. Hepburn, but that by releases dated May 26, 1874, the latter had quit-claimed to Gould all his title to the said two properties. A preliminary injunction having been refused by said court, these properties were sold by the sheriff and purchased by Oscar P. Saunders after notice given by Gould, at the sale, of his claim of title as stated in his bill in equity. Saunders was then added as a party defendant in the equity suit, which resulted in a decree dismissing the bill.

Saunders having taken possession of the properties, Gould on August 4, 1883, brought ejectment against him and recovered judgment therefor, which, upon writ of error at No. 170 July Term 1888, Sup. Ct., was affirmed in an opinion by Mr. Justice CLARK, filed February 18, 1889: Saunders v. Gould, 124 Pa. 237. Prior to the removal of that case to the Supreme Court, however, a writ of habere facias possessionem was issued upon the judgment and Gould was put into possession, whereupon Saunders brought the present action against Gould, which was tried before the decision of the Supreme Court in the former case was rendered.

The release or quit-claim deed from C. W. Hepburn to Gould, for the property No. 928 South Fifth street, mentioned in the bill in equity, was not put in evidence in the present case, but it was produced, and Gould testified that it was delivered to him upon the day of its date, May 26, 1874.

At the close of the testimony, the defendant requested the court to charge the jury as follows:

1. There is no sufficient evidence in this case to show that there was any agreement between the defendant and Charles W. Hepburn, either before the execution of the sheriff's deed to the defendant, dated April 19, 1873, at the time of its delivery, or afterwards, which converted said deed into a mortgage, and without such evidence, said deed, as it is actually expressed within its four corners, is a conveyance of the property to the defendant, in fee-simple.

2. The parol or other proof necessary to convert a deed absolute on its face into a mortgage, must be clear, explicit, and unequivocal, and in all respects such as would move a chancellor to decree a re-conveyance. It is the province of the court to decide whether particular parol evidence be sufficient to convert a deed of conveyance absolute on its face into a mortgage. Under this rule of law, the said sheriff's deed to the defendant dated April 19, 1873, is an absolute conveyance in fee, and the jury should render their verdict for the defendant, under all the evidence in this case.

3. The sheriff's sale of the property No. 928 South Fifth street, under the second Simpson judgment, discharged the lien of the Betts judgment and mortgage upon said property.

4. The lien of a judgment on real estate continues only five years unless revived, and it is essential, in order to continue the lien of a judgment on land sold and conveyed, that the terre-tenant be made a party to, or have due notice of the scire facias to revive. As, therefore, the revival of the Betts judgment, under which the plaintiff claims title in this suit, which judgment was first entered January 3, 1870, and which revival did not take place until December 20, 1879, more than nine years after it was first entered, and over five years after the defendant's purchase and possession, the defendant not having been made a party to or given notice of the suit to revive, he being in actual possession and his deeds duly recorded, for a sufficient number of years prior to said revival, the Betts judgment, under which the plaintiff here claims title, was not a lien on the property in suit in the hands of the defendant, at the time of or after its said revival, the sheriff's sale under the Betts judgment so revived did not pass any title to the property in suit to Oscar P. Saunders, and the verdict therefore must be for the defendant.

5. Under all the evidence in this case the verdict should be for the defendant.

6. There is no evidence that if Charles W. Hepburn and Henry F Hepburn actually bought the properties in suit for Charles W....