Tate v. Clement

• Decision Date: 15 July 1896
• Docket Number: 57
• Citation: 35 A. 214,176 Pa. 550
• Parties: Hugh Tate and Humphrey D. Tate, by their Guardian, Robert E. Brown, Appellants, v. F. H. Clement and E. F. Kerr
• Court: Pennsylvania Supreme Court

35 A. 214

176 Pa. 550

Hugh Tate and Humphrey D. Tate, by their Guardian, Robert E. Brown, Appellants, v. F. H. Clement and E. F. Kerr

No. 57

Supreme Court of Pennsylvania

July 15, 1896

Argued May 11, 1896

Appeal, No. 57, July T., 1895, by plaintiffs, from judgment of C.P. Bedford Co., Nov. T., 1893, No. 221, on verdict for defendants. Affirmed.

Ejectment for two sevenths of a tract of land in West Providence township. Before GORDON, P.J., of the 46th judicial district specially presiding.

At the trial it appeared that on February 27, 1846, Samuel Tate executed and delivered a deed conveying unto Martha L. Tate the wife of his son David C., in fee simple, a tract of land containing about fifty acres, as stated in the deed, although the real quantity was about seventy-nine acres. Martha and her husband went into possession of the property about the 1st day of April, 1846. On July 4, 1846, Samuel Tate conveyed the same land in trust to James L. Black for the benefit of Martha L. Tate, with contingent remainder over to Martha's husband and children in fee. The material portions of this deed and its recitals are as follows:

"And whereas the said Samuel Tate being so seized of the said tract of land, and being desirous to grant and convey a part thereof, viz: Fifty acres and allowance, more or less hereinafore particularly described, to his daughter-in-law Martha L. Tate, wife of his son, David C. Tate, and to her children by her said husband, did, on the 27th day of February last past, seal and deliver to her, the said Martha L. Tate, a deed therefor, in fee. And whereas, the said Samuel and the said Martha L. have been advised that the effect of the said deed of conveyance would be different from what then was and still is the intention of the parties, and that the title to the said property might, under certain circumstances, and the legal construction and force of the said deed, pass to and become vested in other persons than the said Martha L. and her children by her said husband, and their heirs and assigns, who were exclusively the objects of the said grant and the persons for whose use and benefit the same was intended; wherefore, the said deed of conveyance has been, by the consent of the said parties, withdrawn, annulled and cancelled.

"Now this indenture witnesseth that the said Samuel Tate, for and in consideration, as well of the labors and services to him rendered by the said Martha L. Tate and her husband aforesaid for several years past, and of a covenant and engagement on the part of the said Martha L. Tate and her husband, bearing equal date herewith, for the comfortable support and maintenance of him, the said Samuel henceforward during his natural life, as of the sum of one dollar to him paid by the said James L. Black, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, released and confirmed and by these presents doth grant, bargain, sell, release and confirm unto the said James L. Black, his heirs and assigns, all the following described and bounded part or parcel of the tract of land above mentioned, viz: . . .

"Together with all and singular the tavern house, barn, stable, and other improvements thereon erected and made, and the rights, privileges and appurtenances thereunto belonging.

"To have and to hold the said described and bounded tract or parcel of land with the appurtenances to him, the said James L. Black his heirs and assigns, in trust nevertheless to and for the several uses, intents and purposes hereinafter mentioned, limited and declared of and concerning the said tract of land, and to and for no other use, intent or purpose whatsoever; that is to say upon special trust and confidence that he the said James L. Black shall and will permit, suffer and authorize the aforesaid Martha L. Tate to possess, occupy and enjoy the said tavern house, land and premises hereby granted and every part thereof, for and during her natural life to and for her own exclusive and separate use, benefit and support, and so that the same shall in no wise be in the power or liable to the control, engagements or debts of her present or any future husband; or at her option to permit and suffer her the said Martha L. Tate to let and demise the said property or any part thereof, and to receive and take the rents and income thereof to her own separate use during the said term of her natural life, for which the receipts of the said Martha L. in her own name, shall be deemed, adjudged and taken to be good and valid discharges in law, and from and immediately after the decease of the said Martha L. Tate, if her husband David C. Tate aforesaid shall survive her, then to hold all and singular the premises hereby granted in trust to and for the only proper use, benefit and behoof of the said David C. Tate for and during all the term of his natural life, and no longer; and from and after the decease of the survivor of them the said David C. Tate and Martha L. Tate, his wife, then to hold the said land and premises, with the appurtenances, in trust for such of the children of the said David C. Tate, by the said Martha L. Tate as shall be living at her death, and the lawful issue of such children, if any, as may then be deceased, their heirs and assigns forever."

Samuel Tate died in 1849. His son, David C. Tate, died in 1850, leaving to survive him his widow, Martha L. Tate, and an only child, Samuel B. Tate. The son died in 1888, leaving to survive him his mother, his widow and seven children, two of whom are the plaintiffs in this action. Martha L. Tate died in February, 1893. In 1883, Martha L. Tate and Samuel B. Tate conveyed the land in controversy to F. H. Clement. In this deed she recites the trust deed as a deed under which she claimed title. The deed of February, 1846, was not recorded, but the trust deed of July, 1846, was duly acknowledged and recorded.

The court gave binding instructions for the defendants.

Verdict and judgment for defendants. Plaintiffs appealed.

Error assigned among others was above instruction.

Judgment affirmed.

Samuel T. Brown, for appellants. -- A trust never becomes defunct for want of a trustee. A person in possession of money or property, acknowledging a trust, becomes from that time a trustee. His antecedent relation to the subject no longer controls: 2 Story's Eq. Juris. sec. 972.

In 1846 and down to the 11th day of April, 1848, a conveyance of land to a married woman, whether in fee tail or fee simple, was in effect a conveyance to the husband, for his life, and then to the wife if she survived him. The husband became entitled to the possession and to the rents and profits, and these might be "swept away, through the improvidence, misfortune, or even vice of the husband, and she left to destitution:" Bear's Adm. v. Bear, 33 Pa. 527; Towers v. Hagner, 3 Wharton, 50.

A deed executed and delivered, containing a mistake as to what was intended, may be destroyed by consent of the parties and a new one executed to conform with the intention of the parties interested in it: Gardner v. McLallen, 79 Pa. 398; Wiley v. Christ, 4 Watts, 196.

Under the recital showing the purpose of the first deed Martha L. Tate might agree to the cancellation of the first deed, and even if she held it, she would be a trustee for her children and their issue: Barncord v. Kuhn, 36 Pa. 383.

If a man make a deed to two persons and deliver it to only one and say nothing of the other, on the delivery, the deed is void as to him: Hannah v. Swarner, 8 Watts, 9.

Delivery is one of the requisites of a good deed. There can be no delivery without an acceptance. Both delivery and acceptance are matters of fact. The court could not say in this case, as a matter of law, that there was a good delivery, when the whole context of the recitals in the trust deed shows that there was no acceptance: Van Amringe v. Morton, 4 Wharton, 381; Dayton v. Newman, 19 Pa. 194.

A recital in a deed under which the party offering the recital does not claim is not evidence for him: Jack v. Woods, 29 Pa. 375; Dean v. Connelly, 6 Pa. 239; James v. Letzler, 8 W. & S. 192. The assertion of an alleged fact in a deed dated in July, 1846, could not affect parties whose interest and whose right to object could not be determined for more than forty years afterwards; especially would this be true where the parties to be bound are minors: Osborne v. Endicott, 65 Am. Dec. 498; Phillips v. Stroup, 1 Mona. 517.

A lost deed can only be proved under the act of assembly, and according to its provisions: Kerns v. Swope, 2 Watts, 79; Bolton's Est., 14 Pa. C.C. 575.

The act of March 18, 1775, expressly provides that a deed not duly acknowledged shall be held fraudulent and void as against a subsequent purchaser for a valuable consideration. The act does not provide for any other than record notice. Proof of acknowledgment is absolutely necessary, and the recital in this case does not furnish it: 1 Purd. Dig. 583; Penna. Salt Co. v. Neel, 54 Pa. 18; Davey v. Ruffell, 162 Pa. 443; Collins v. Aaron, 162 Pa. 539; Simon v. Brown, 3 Y. 186; Impt. Co. v. Mitchell, 35 Pa. 269.

A married woman, like others, is bound by the recording acts, and is estopped from claiming under an unrecorded deed: Husbands on Married Women, 68; Couch v. Sutton, 1 Gr. 120; Rhoads' Est., 3 R. 420. A recorded deed in Pennsylvania will be construed as a feoffment with livery of seizin: Eckman v. Eckman, 68 Pa. 460. If a former owner neglects to record his title, every presumption is to be made in favor of a subsequent purchaser: Boggs v. Varner, 6 W. & S. 469.

The possession of Martha L. Tate avails nothing for defendants in this case. It is in fact against them. The title of a person in possession is always presumed to be under his title on record...