Lewis v. Brewster , 57 Pa. 410 ( 1868 )

The opinion of the court was delivered, by

Read, J.

On the 15th of March 1858 Daniel Brewster and wife, by deed duly executed, acknowledged and delivered, conveyed the land in dispute to his daughter-in-law, Ann Brewster, wife of his son D. D. Brewster, in fee simple. The consideration named in the deed, $300, was merely nominal, the real consideration was natural love and affection for her and her children, his grandchildren.

The plaintiff had obtained a judgment before a justice of the peace against D. D. Brewster, for an old debt alleged to have been incurred as far back as August 1850, which was revived on the 19th November 1861, and a transcript was filed in the Court of Common Pleas on the 23d August 1862, and a certificate of nulla bona filed 1st February 1864; on this judgment a fi. fa. was issued on 2d April 1864, the land levied on condemned, and under a vend. exp. sold to the plaintiff for $5 by the sheriff, and a deed made to him on the 8th September 1864.

On the 30th May 1865 the plaintiff commenced this action of ejectment against D. D. Brewster, and on the 14th April 1866 a confession of judgment by defendant of 19th March previous was filed. On the 11th May, on filing the affidavit of Ann Brewster, now Wager, the court granted a rule to show cause why judgment entered in this case should not be set aside and vacated, which, on the 7th September, was made absolute; the cause was then put at issue and tried, and resulted in a verdict for the defendant.

As it was the wife’s land, and the husband would not defend but confessed judgment, she had a right to apply to have the judgment set aside and a defence allowed: Johnson v. Fullerton, 8 Wright 469. This disposes of the 5th assignment of error.

To sustain the defence the deed from Brewster and wife to Ann Brewster was given in evidence; and Asa Stevens, Esq., testified, “ I wrote this deed, Brewster and wife were present, and Philander Brewster (another son), also might have been others.” Defendant now propose to ask the witness what was paid, if anything, when the deed was executed and delivered ? — objected to on the ground that it contradicted- the deed; objection overruled and evidence admitted, and exception noted.

“ There was nothing paid; he directed me to make the deed to his daughter-in-law. If I understood him, it was a gift, that the family might have a home; the son was unsteady, he would not deed it to the son, for he was afraid he would get rid of it if he did.”

Another witness said: “ There was no money consideration for the deed, none paid or expected, it was wholly a gift.” The evidence was ample to the same effect. “ He (Brewster) said he wanted David’s wife and children to have it, for he said he was giving the land; there was no money about it.” Evidence may also be given of a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it: 1 Greenlf. Ev. § 285, and if the deed appears to be a voluntary conveyance, a valuable consideration may be proved by parol: Id. 304. And there seems to be no reason why what appears to be a valuable consideration should not be proved by parol to be a gift for a good consideration. The whole subject is ably and liberally dissected by Kennedy, J., in Jack v. Dougherty, 3 Watts 151, and the cases cited by him to support his conclusions. “ It is plain,” says the learned judge, “ from all the cases on this point, that any discrepancy which may appear to exist in the decision of this, arose entirely from a difference of opinion among the judges as to what was or was not inconsistent with the terms of the deed, some judges thinking that the mention of any particular consideration in a deed, without more, expressly negatived the fact of its being founded upon any other or greater consideration, while others conceiving that as the law did not always require the true, or the whole of the true consideration to be inserted, to give the deed validity, and that therefore it frequently happens that but little regard was paid by the parties to the consideration set forth in the deed, whether 'it was the whole consideration or not, leaving it perhaps to the scrivener to put in such of it as in law he might deem sufficient to make the deed operative, thought it unreasonable to make the consideration introduced into the deed binding upon the parties, so as to preclude them from showing the true or the whole consideration wherever the ends of justice might seem to require it. The consideration being thus inserted rather to meet the exigency of the law, than the whole truth of the case, it was held not to be inconsistent with the intention of the parties, which ought to give force and meaning to the terms of the deed, to admit parol evidence to show what the true consideration of it was.” This case is quoted by my brother Strong, in Buckley’s Appeal, 12 Wright 491, and the principle is stated in Miller v. Goodman, 8 Gray 542. Judge Kennedy says, “ It appears to me they were a part of the res gestee, and according to the settled rule in this respect ought to have been admitted in evidence,” and this is in conformity to the very liberal rule adopted in this state as to the admission of parol evidence as explained by the late Chief Justice in Chalfant v. Williams, 11 Casey 212.

The unsteady husband deserted his wife, proving his father’s knowledge of his character, leaving her to support the children, and she obtained a divorce from him and has married again.

We have examined carefully the answers of the court to the points of the plaintiff and defendant, and think them proper and correct.

Judgment affirmed.