Warren v. Steer , 17 W.N.C. 489 ( 1886 )

Mr. Justice Clark

delivered the opinion of the court, May 17th, 1886.

This ejectment was brought to recover the possession of a lot of ground, situate on the east side of Eighteenth street, south of Wood, formerly in the district of Spring Garden, in the City of Philadelphia. Richard W. Steel, it is admitted, was in the year 1854 the owner of the ground in question; in that year Steel exposed the lot to sale by auction at the Public Exchange, and William J. Warren became the purchaser thereof, his brother-in-law, Henry Davis, bidding it in for him at the sum of $600 or $650. Warren, it is conceded also, paid the purchase money from his own funds, together with all the expenses of the conveyance, but took the title in the name of his sister, Mary Ann Davis, wife of Henry Davis. The defendants’ contention is, that a trust resulted to William J. Warren as the source and origin of the consideration, and their claim is under him.

The plaintiff claims title under a conveyance from Mary Ann Davis, executed after the decease of William J. Warren, and dated 6th May, 1875.

As the case stood when Edward J. Steer was offered as a witness, he was clearly competent; when in the progress of the trial and before the testimony was closed, his incompetency appeared, his testimony was stricken out, and in the charge the jury was distinctly instructed to entirely disregard it. The learned court was not obliged to anticipate the defence, and could not exclude the witness until his incompetency appeared. The first assignment of error is therefore not sustained.

Neither Henry Davis nor his wife were parties to the suit, and after the execution of the release to them by Edward J. Steer they had no interest in the result. The subject matter of the suit was the title and possession of real estate, and the action ejectment. The rule laid down in a large number of cases in this court, and recently declared in Fross’ Appeal, 15 W. N. C., 543, that where one of the parties to a contract in litigation is, by death, denied the privilege of testifying in relation to it, the policy of the law will close the mouth of the other, applies to suits upon choses in action only; although it would be difficult, perhaps, to assign the reason for the distinction, a long line of cases show that the rule has never been held to apply to actions involving the title to real estate. Henry Davis was, therefore, not incompetent as a party to the suit, nor upon, the ground of interest, or upon any rule of public policy. He was clearly competent prior to the passage of the Act of 1869, and that Act has not rendered any witness incompetent who was not so before its passage. The fourth, fifth and sixth assignments are therefore not sustained.

It is- well settled as a general rule of equity, that where a purchasér of real estate pays the purchase money out of his own funds, as his own, taking the title in the name of another, the ownership of the money will draw to it an equitable interest in the land; he will be presumed to have bought for himself, and the beneficialtitle to the property will be in him. To this general principle there are well known exceptions, but the case in hand does not fall within them. It is not claimed that William J. Warren occupied any such relation to Mary Ann Davis, the nominee in the deed, as created any obligation on his part, moral or otherwise, to provide for her; although a sister, she must in this transaction be treated as a stranger: Edwards v. Edwards, 3 Wr., 369.

The intention of the parties at the time is the essential element, for if Warren paid the consideration as his own, and not for his sister, the beneficial title is his; his declarations afterwards made, and not bearing upon his intention at the time, cannot affect his title, or vest in his sister an estate, which, at the execution of the deed, was the estate of Warren himself.

Henry Davis is the only witness who testifies as to the circumstances attending the purchase of the property by Warren. He says that on the day of the purchase Warren came to his house in Camden, and said to him: “ Henry, there is a lot in dispute between me and Mr. Steel; ” the best of my knowledge, he said that they had a law suit about it and it went to court,-and they could not collect the expenses off the lot; and he says: “ It is to be sold at the Exchange to-night; I want you to .come over and bid it in; if you will, I will give it to your wife and make her a deed for it.” My brother-in-law was a speculator, and I thought he might get me into trouble, and I says to him : “ William, if there is nothing wrongjn it I will do it.” He states that he attended' the sale at the Exchange as requested ; that Warren stood beside him and urged him to bid, and that the property was knocked down to him at the sum stated.

The declarations of the parties subsequently made, and their conduct in the management and control of the property, are only material as they bear upon the intention of the parties at the time.

Davis testifies that in the same year (1854) he was about to remove to Cape May; that Warren brought the deed to his house in Camden, laid it upon the bureau; staid several hours; took tea with the family, and as he was about to leave, said: — “Mary Ann, as long as'you are going to move away, I will take this deed, and take care of it for you, and if anything happens, I will see to it for you; ” that he took the deed with him, and has since retained it in his possession ; that he frequently spoke of the lot as “ Mary Ann’s lot,” and at one time said, “ I am going to put up a house on that lot; these two walls are mine adjoining, and all I have got to do is to pick into these walls, put in the joists, build the front and back, and I have got a house; I have almost collected rent enough to pay it.” He further states, that at another time, whilst the witness resided at Rio Grande, Warren said in the presence of Mrs. Davis, that the lot was doing her no good, and if they were agreed he would sell it and give her the money. “When he came back again,” says the witness, “he said: 'Mary Ann, I have, come to get a deed for that property; I am offered. $3,000 for it, and I want to sell it for you; I cannot unless you give me a deed.’ I told him I could not or would not. Then he coaxed me to do it without any money or any valuation on it; he tried to coax me to do it. Says I, “William, I won’t do it. It never was-mine; it was my wife’s. It was mine by promise. You promised it to me if I would go and buy it; you promised to give it to my wife ; it was mine by promise and her’n by deed.” And says I, "I shall not sign the deed.” “Well,” he says, “it is good for nothing without you do.” Says I, “I have nothing to do with it; it don’t belong to me; it belongs to my wife.”

Mr. Davis is corroborated, to some extent, by the testimony of Samuel and Susan Izzard; the latter stated that in July or August, 1872, Mr. Warren came to Rio Grande, where Henry Davis then lived; that whilst he was there he had a conversation with him, in which he stated, that he came down to see Mrs. Davis, to get a deed for the property that Mrs. Davis held, for some property in the city; that he had an offer for it, and thought he would come down and get the deed, and sell the property and give her the money, $3,000; that the money would do her more good than the property. •

The deed, it is true, was never fully delivered to Mrs. Davis, but as Warren was the active party in the purchase, the delivery to him was sufficient. The title of Steele was certainly divested as soon as the purchase money was paid and the deed passed to Warren; the title, thereafter was a matter between Warren and Mrs. Davis; she was not bound to accept it, but it is shown that she did, and she now claims, that it is in fact the absolute expression of the intent of the parties.

On the other hand, it is shown, that Warren, from the date of his purchase, held the deed in his own hands, that he entered into, and continued in the apparent, actual, uninterrupted possession and enjoyment of the property, until the time of his decease, in the year 1874; that in 1855 he erected upon it a carpenter shop, leased it from year to year, in his own- name, to various tenants, received the rents, kept up the repairs, paid the taxes, and to the time of his decease, never accounted, or was called upon to account, to his sister, or any other person, for the possession, or for the rents, issues and profits, which have accrued. Since the decease 'of William J. Warren, his widow and heir at law, the defendants below, have continued in the enjoyment of the property, and are still in the possession claiming under him.

Whether or not a trust resulted to Warren, at the time of the purchase in 1854, depends wholly upon a presumption of an intention to that effect, arising from the payment of the purchase money by him; the facts to raise this presumption are shown by parol and of course the presumption may be overcome by parol evidence of an actual intention otherwise.

If the testimony of Henry Davis is believed, the property was purchased directly for the benefit of Mrs. Davis, and the purchase money was paid, upon the footing of an express promise to that effect; under such a state of facts no presumption of a trust in his own favor could arise. This is what the court distinctly declared in the answer to the defendants’ fifth point. But if the testimony on this point was not believed, or if the language employed by Warren was such as to render his purpose and meaning uncertain or ambiguous, the fact that afterwards and apparently in pursuance of the promise to convey to his sister, the property was actually conveyed to her, taken with the several declarations of Warren subsequently made, certainly tends to show that this was the settled purpose of his mind at the time. The retention of the deed, the continuity of the possession in Warren, his continued act of ownership and control, are facts of a strongly rebutting character, but their effect was wholly for the jury.

We are of opinion that there was abundant evidence to justify the submission ; the veracity of the witnesses, and the conflict in the evidence, were matters with which we have nothing to do. Upon a careful examination of the whole record, we find no error, and

The judgment is affirmed.