Nulton's Appeal , 1883 Pa. LEXIS 156 ( 1883 )

Mr. Justice Clark

delivered the opinion of the court,

The prayer of this bill is for the rescission and cancellation of a deed of conveyance, from Frederick M. Nulton to Elvira Nulton, dated April 2d 1881 for eighty-nine acres and twenty-one perches of land, situate in Franklin township, Luzerne county, which was regularly executed and delivered ; also for an account.

The Master, after full consideration, recommended a decree dismissing the bill; the learned court below, however, upon examination of the report, reversed the Master, and ordered the said deed to be cancelled and annulled, denying, however, the prayer for an account.

We will not enter into any minute discussion of the facts in dispute ; they have already been considered fully by the Master on the one hand, and by the court on the other. It is only necessary that we should indicate which view of the case the judgment of this court shall approve, with a general statement of the reasons therefor. A brief reference, however, to the respective parties, showing their relation to each other, as well as' to other persons involved in the controversy, will lead to a better understanding of the case.

Benjamin Nulton, at his decease, was the owner of a considerable estate, consisting, in part, of a tract of land containing one hundred and fifty-five acres, more or less, upon which he resided, and of which the lands described in the aforesaid deed are part. He left surviving him a widow, the said Elvira, aged fifty years, and an adopted son, the said Frederick M. Nniton, aged thirty-two years ; the latter had a wife and four children, and for nine years prior to the decease of Benjamin Hniton, had not'lived with his adopted father. The old man’s family consisted of himself, his wife, and a young man named George Paddock, then about nineteen years of age, whom he had taken from the poor-house when a child. George was not legally adopted, as Frederick had been, but had lived in the family and labored on the farm for fifteen or sixteen years. In the year 1881, George left the old man’s home, but was invited, by letter from the old man, to return ; in the letter the writer says “if you will come and stay with me as long as I live, I will give you all I hold,” &c.; George returned pursuant to the invitation, and remained. Benjamin Hulton died suddenly, on the 26th day of March 1881, intestate, and without having made any provision for George, as he had agreed. Elvira employed one J. O. Turner, to assist her in this new complication of her affairs, and on Monday, after the funeral, the parties met at Wilkesbarre, each to ascertain the nature and extent of their respective rights. At this meeting, which was on the 29th March 1881, án agreement was entered into between Frederick M. Nulton and Elvira Nulton for a division of the farm between them ; a survey to be made and mutual releases to be executed within ten days or sooner if a proper survey could be made.. Subsequently a survey was made and on the 2d day of April 1881, mutual conveyances were interchangeably executed and delivered.

The prayer of the bill is that the deed from Frederick M. Hulton to Elvira Hulton, made under these circumstances, shall lie delivered up for cancellation. The ground upon which such relief is sought, as we find from an abstract of the bill furnished us -is as follows, viz :

“That at the-time of executing said deed the,plaintiff was ignorant of • his- legal rights in the estate of Benjamin Nulton, deceased, that the said deed was without consideration, made upon false statements of the said Elvira Nulton of the law and facts concerning the value of said estate and, is fraudulent and void.”

The answer riled by the defendant, being responsive to the bill, expressly negatives all the material allegations contained therein, and avers that the plaintiff was fully acquainted with his legal rights ; that the survey of tho farm was made and the deed drawn under his direction : that the money consideration of one dollar therein named was paid; that no false statements either of law or facts were made to induce the plaintiff to execute his deed, and that in pursuance of her deed to the said plaintiff for the remaining portion of the farm he went into possession of his portion and remains still in the possession thereof.

Upon a careful review of all the facts and circumstances, in proof, we are unable to agree with the learned court, and, therefore, accept .the conclusions of the Master: We fail to find such evidence of fraud or mistake as would justify a decree for cancellation of an executed conveyance. The undoubted effect of the answer filed was to require the plaintiff by sufficient proof to establish the facts traversed. The testimony of the plaintiff, unsupported and alone, is insufficient for that purpose, the answer was responsive to the bill, and therefore another witness, or proof of circumstances in corroboration, were required. Tiie plaintiff must bring his case within the well-established rule of equity that where the defendant, in express terms, negatives the allegations of the bill, and the evidence of one person only affirms what has been so negatived, then the court will neither make a decree nor send it to a trial at law : Daniel’s Ch. Pr. & Pl. 983. Nor would the cause be sent to a trial at law, unaccompanied by instructions as to the requisite amount of proof to sustain a verdict contrary to the positive denial of the answer. The operation of the defendant’s answer is the same, although the equity of the plaintiff’s bill is grounded on the allegation of fraud: Audenreid’s Appeal, 8 Norris 120, and cases there cited : Horton’s Appeal, 13 Penn. St. 67; Slemmer’s Appeal, 58 Ibid. 155; Greenlee v. Greenlee, 22 Ibid. 225.

The plaintiff has produced no such witness, nor has he shown such facts in corroboration as would overcome the effect of the answer. It is said in the opinion of the court below, that “ the corroborations of the plaintiff' are to be looked for, not in the direct testimony of living witnesses, but in the circumstantial proof afforded by the whole case, and these corroborations seem to abound in every portion of it, and to point to one conclusion,” &c. If the fact in dispute were whether or not Frederick M. Nulton made an unwise or improvident contract. with Elvira Nulton, then the corroborations would seem to abound in every part of the case ; but as touching the real quostions at issue, we fail to find a single important fact or circumstance outside of the testimony of Frederick M. Nulton, which can be regarded as a substantial corroboration.

Assuming that he was not actuated in this transaction by motives of generosity, affection or sympathy, he made a had bargain; several witnesses testify to that, whilst as many say that he was an ignorant man, of very moderate mental capacity and lacked business experience. The Farrels testify that Turner and Paddock, prior to the funeral, \Vere handling and counting the old man’s money. Their conduct -was, however, not concealed from Frederick, or from any one, and it is not improbable under the circumstances that they may have been at the time in search of a will; at all events, this transaction had no relevance to the matter now under discussion. There was no confidential relation existing between Frederick and Elvira. He had not for some years been a member of the household of Benjamin Nulton ; he was not of kin to the widow, he had not been adopted by her, they dealt at arm’s length. The facts referred to, although suitable for consideration in a proper case, are not corroboratory in their character.

But if the testimony of Frederick M. Nulton were supported in all essential particulars, the conscience of the court would not bo moved to order this deed to be delivered up for cancellation. His testimony, taken together, does not show the perpetration of a fraud upon him, nor that he was mistaken ip, or ignorant of.his rights. On the contrary, Turner, at the first interview, told him frankly that he had been adopted, and afterwards he was assured of that fact in the presence of the Messrs. Shoemaker. It was upon the assumption of that fact that all the negotiations were conducted. He seemed to know the effect'of a legal adoption, for ho was . eager to ascertain the fact, and in his search went where only it could be reliably known. He knew he had'a right to the land under his adoption, as he could have no right otherwise. Turner, it is true, told him of the letter written to Paddock, and that the old man had promised to make Paddock equal with Frederick, but the lettér was produced and more than realized Turner’s statement, as the old man in that letter promised Paddock all that beheld, instead of half. The letter constituted the ground for a bona fide claim, not for the land perhaps, but for compensation, and whilst we cannot now say what Paddock might “ hold ” under his claim, it does not appear that by enforcing his claim that he -would not “ hold as much ” as Frederick. It was a doubtful claim ; it was the subject of suit and, therefore, of compromise. The survey .was made under Frederick’s own eye, according to landmarks previously agreed upon, and, although he objected, yet he afterwards agreed, renewed his objections, and again agreed ; and finally, after two or three days deliberation, he, with apparent willingness, executed the deeds. He of course knew the division was not equal, that was the ground of his objection. Although he says he was ignorant of his rights, he does not say in what respect he was ignorant of them.

It will also be observed that this bill was filed without any offer on the part of the complainant to place the widow in statu quo, or to reconvey to her the dower interest in that part of the tract conveyed by her under this arrangement. This was certainly, pre-requisite, at least upon the issue raised by the complainant’s allegations of want of consideration, mistake and ignorance of legal right. On the contrary, Frederick went into possession of his portion of the tract under his deed, has had exclusive enjoyment thereof to the lines of the survey, without any recognition of her dower lights or any offer to restore them.

We conclude, therefore, that although there may have been some powers of persuasion, exercised by the widow, in her own interest, there was, in fact, no fraud established ; that the deeds were undoubtedly made upon a good consideration; that Frederick was not ignorant of his rights, and that there was no mistake or surprise on his part in this matter, and that, therefore, the deeds are binding upon the parties.

The decree of the court below is therefore reversed, and the bill is dismissed at the cost of the appellee, who is the complainant therein.