Warren v. Steer

• Court: Pennsylvania Supreme Court
• Writing for the Court: Mr. Justice CLARK.
• Citation: Warren v. Steer, 112 Pa. 634, 5 A. 4 (Pa. 1886)
• Decision Date: 17 May 1886
• Docket Number: 166
• Parties: Warren v. Steer

5 A. 4

112 Pa. 634

Warren v. Steer

No. 166

Supreme Court of Pennsylvania

May 17, 1886

Argued January 4, 1886

ERROR to the Court of Common Pleas, No. 2, of Philadelphia county Of July Term, 1884, No. 166.

Ejectment brought by Edward J. Steer against Henrietta Warren and David K. Large, guardian of the estate of Annie Warren, a minor for a certain lot of land in the City of Philadelphia.

Plea not guilty.

The following are the facts of the case as they appeared on the trial before HARE, P.J.

The plaintiff claimed, through a deed from Henry Davis and Mary, his wife, executed after the death of William J. Warren. The defendants claimed under William J. Warren, who held by a deed which they alleged Davis and wife had made to him; they also claimed that Mrs. Davis was his trustee under the following circumstances: In 1854, William J. Warren informed Henry Davis, who had married his sister, Mary, that there was some dispute between him and Richard W. Steel, in relation to a lot that was to be sold that night at the Exchange. He requested him to be present at the sale and bid it in, and promised if he would do so he would have the deed made to his sister, the wife of Davis, and give it to her. Davis asked if there was anything wrong about it, and was assured by Warren that there was not, and that thus the present for his sister could be best secured; whereupon he assented, and duly made the purchase. The money was paid by Warren, and at his order the deed was made to Mary Davis. Davis testified that shortly after the deed was made Warren brought it to his house in Camden, laid it upon the bureau, staid several hours, and as he was about to leave said to his sister that he would take the deed back with him and take care of the property for her. Mrs. Davis and her husband soon after departed from Camden for Rio Grande, in New Jersey. He stated to them, and to others afterwards, that his sister owned the lot, that he was collecting the rents for her, and that he proposed when the rents had accumulated to use them in paying for a building on the ground, so that she might have something to fall back upon. He had the property duly registered as hers in the Registry Bureau of the Survey Department of Philadelphia, and there was thus secured to her as owner the advantages created by the several Acts of Assembly relating to that department.

At the close of July or beginning of August, 1872, Warren visited his sister at her home in New Jersey. His plan then was, instead of erecting a substantial dwelling for her on the lot, in the place of the frame building which was there, to avail himself of an opportunity to sell the land and give his sister the money. She was quite aged, being now about eighty-four. He discussed the matter with Mrs. Davis and her husband. The former was averse to a change in the arrangement, and the latter declined to act; but the views of all were in accord by the next morning, upon his assurance that the transaction was to secure the money for Mrs. Davis; and then she and her husband gave him an instrument which cannot be described, since it was lost by Warren on his reaching his home. It may have been a letter of attorney, authorizing a sale. It was not, according to the plaintiff's proofs, a deed to Warren in fee simple, but it gave him some personal power, the words, "heirs and assigns," having been intentionally omitted. The conjecture that this was a letter of attorney flows from the narration of what occurred on the morning referred to. Warren visited two neighbors of his sister, Samuel and Susan Izzard, before breakfast, and told them, in the course of his conversation, that he had come from Philadelphia to obtain a paper from "Mary Anne," that he might sell her lot for $3000. "He said that he thought he would come down and get the deed, and sell the property and give her the money that he got; the $3000 that he got for it; that it would do her more good than the property." Shortly after his return to Philadelphia he saw Henry Davis there, and told him that the paper was lost. "He hollowed at me," said Davis: 'Henry,' says he, 'the deed that I had at home for you, and one other deed, were lost.' Whether it was so, or not, I know not; but that is what he told me. The deed from Mr. Steel and this deed was together in his pocket, and he hung up his coat in the entry, and when he got up in the morning both deeds were gone, and he says to me, 'Henrietta has taken them out.'" . . . Q. Who had taken them out? . . . "Henrietta, his woman that he lived with." . . . "He said, 'Never mind, it will not make any odds; it will only make the other deed the better, the stronger.'" Nothing of moment occurred after this till Warren's death.

On the trial, May 19th, 1884, the plaintiff called on the defendants to produce the deed of Steel and wife to Mary Ann Davis, dated February, 18th, 1854, acknowledged but not recorded. Objection was made to the deed being offered in evidence, unless possession under the deed was shown in Mrs. Davis. The plaintiff was then called in his own behalf, and under objection and exception of defendants, he testified that he had been informed by William J. Warren that Mrs. Davis went into possession of the lot after February, 1854; that he, William J. Warren, acted as her agent, because she lived out of Philadelphia. On cross-examination it appeared that Mr. Warren was dead, and that the defendants were Mr. Warren's widow and heir. (First assignment of error.)

Defendants then moved to strike his testimony out, which was refused: but subsequently the judge, in his charge to the jury, directed them to disregard this evidence.

The deed, Steel to Davis, was then admitted in evidence, under exception.

Plaintiff offered a deed from Mary Ann Davis and her husband, Henry Davis, dated May 6th, 1875, to Edward J. Steer, the plaintiff, which was admitted under objection and exception.

He also called Samuel Izzard, a neighbor of the Davis's in New Jersey, who testified, under objection and exception, that he visited Warren's house but once, and then took a walk with Warren, and, while going along one of the streets of the city of Philadelphia, Warren said to him, while pointing to a frame house: "This house is Mary Ann Davis's; I bought it and made her a present of it." He (Warren) further said he got Davis to bid it in for him. But the witness could give no idea when this walk and conversation took place; whether it was fifteen years before or not; he said he could not tell what street the house was on, or anything about it.

After offering the writs in this case plaintiff closed, and defendants moved for a nonsuit, which motion was overruled, and defendants then called witnesses to show that Mr. Warren had owned property adjoining and around the property in question; had taken possession of this lot; built a frame carpenter shop upon it in 1855; had leased it in his own name, paid the taxes; exercised all acts of ownership; and had never done anything that indicated that he was acting as agent for Mary Ann Davis or anybody else until he died in 1874. They further called a witness, who testified that, on the day that Warren was buried, Henry Davis and Mary Ann Davis had told him, the witness, that Warren had bought this lot through Davis at the Exchange; took title in her, Mrs. Davis's, name; and that when Mrs. Davis was sick, they had made a new deed to him.

They also called a witness who had been clerk to Judge MARCY of the Court of Common Pleas of Cape May county, New Jersey, and testified to the signature of Judge MARCY; and his (the witness') own writing in the acknowledgment to the deed of 1871; and that the alterations in the acknowledgment had been made at Judge MARCY'S request. After which defendants offered in evidence the deed of November 3d, 1871, Mary Ann Davis and Henry Davis to Wm. J. Warren, and rested.

The plaintiff then called, in rebuttal, Henry Davis, who was objected to as being an incompetent witness. He then put in evidence a deed dated March 31st, 1884, from himself to Davis and wife, releasing them from all liability upon their covenants in their deed to him. The court held Davis a competent witness and permitted him to testify. (Fourth assignment of error.)

Davis testified, under objection and exception, that Warren had declared to him and his wife that the lot in question was a gift from him to Mary Ann Davis, his sister, and that he, Warren, held the premises for her. (Fifth assignment of error.)

Davis also under objection and exception denied the execution of the deed, Mary Ann Davis, wife of Henry Davis, to William J. Warren, dated November 3d, 1871, for the lot in question. (Sixth assignment of error.)

The defendants presented, inter alia, the following points:

3. If the jury believe that the premises in question were purchased by William J. Warren with his own money in 1854, and after said purchase he entered into possession and remained in possession until his death in 1874, holding the property and premises as his own, the verdict should be for the defendants.

9. If William J. Warren went into possession of said premises in 1854, and held such possession as his own, openly, notoriously and adversely until his death in September, 1874, and his widow and heir have held the same kind of possession since that time, or until the bringing of this suit, then the verdict should be for the defendant.

In answer to these points the court said that such possession as was described in the third point was evidence for the defendants, and if notorious and adverse, as stated in the ninth point, conclusive in his favor, and a defence to the suit. If, however, it was coupled with an admission that the right was in Mrs. Davis, it would not be adverse or constitute a...