Zeigler v. Shomo , 1875 Pa. LEXIS 146 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court, October 11th 1875.

The deed of assignment, John P. Hobart, register in bankruptcy, to Jacob Pyle, assignee of Elijah W. Zeigler, not having been acknowledged according to the requirements of our Acts of Assembly, was not a fit subject for record, and hence the admission in evidence of the copy thereof, appearing upon the recorder’s book, was erroneous. True, the Act of Congress requires these deeds of assignment to he recorded in every office of registry of deeds in the United States, where a conveyance of any lands owned by the bankrupt ought to be recorded, but, as it does not provide any mode of authentication, it follows that the mode prescribed by the several states must be pursued. We are not, however, prepared to reverse for this error, as we do not think the paper had any significance in the case, and hence its admission was productive of no harm. Had the assignee made the sale on his own motion this deed would have been all important, as without it there would have been no warrant for such sale. But his action, in the case presented, is under and by virtue of the authority of the District Court of the United States. Where the property of the bankrupt is encumbered, or where the title thereto is in dispute the assignee has no power to sell except under the order and direction of said court. Hence, in such case, it is this order, and not the deed of the register, which empowers the assignee to act:' Rev. Stats. U. S., § 5063; In re Graves, 1 Bank. Reg. 19 ; In re Salmons, 2 Id. 19. The inquiry, then, is one limited to the question of the jurisdiction of the above-named court; about this, however, there is and can be no dispute. For not only has it such jurisdiction, but from the moment of the commencement of proceedings in bankruptcy the property and estate of the banlumpt are in the custody of that court, and its jurisdiction over them is superior and conclusive,: Bump’s Bankruptcy 152 and 153, and authorities there cited. It follows, that the decrees of that court, upon the subject-matter in hand, are final and absolute. We have, further, the petition of Pyle the assignee, setting forth the fact that the title of Zeigler to the property therein described was disputed, and praying for an order of sale; the approval thereof by the register; the return and report of sale; the decree of the court confirming the same, and the deed to Shomo in pursuance of said decree. Thus we not only find the general jurisdiction ample, but we also find the proceedings necessary to bring that jurisdiction to bear upon the special case. The purchaser having discovered this condition of affairs was bound to look no further. As is said in McPherson v. Cunliff, 11 S. & R. 432, with reference to Orphans’ Court sales: “ The purchaser is not bound to see further back than the order of the court; he is not to see whether the court was mistaken in the facts of debts and children; his contract is in truth with the court.” So we say as to the case in hand; Shomo was not bound to look beyond the order of the District Court to see whether every particular had been complied with in the appointment and qualification of the assignee; his contract was, in fact, with the court, and as it had ample power over the subject-matter, he, as its vendee, took whatever title there was in Elijah W. Zeigler at the time of the act of bankruptcy.

The deed, then, being good, the question turns upon Mrs. Zeigler’s right of possession, for it cannot be pretended that Zeigler himself can defend against the vendee in bankruptcy. This alleged right of possession in the wife, depends upon whether she had or had not title to the premises in controversy, if she had no title, her possession was that of her husband and the defence rightly failed. Upon this branch of the case, a number of exceptions have been taken to the ruling of the court below. There is but one, however, which we deem important to consider. It is the one raised by the fifth specification, and which excepts to the refusal of the judge to submit to the jury the testimony of Zeigler detailing the declarations of Turner in his lifetime, concerning the vesting of an alleged trust in Mrs. Zeigler at the time of the execution of the deed of 1851, from Turner to Zeigler, as well as some subsequent declarations of the same character, which occurred in 1853, at or about the time of the cancellation of the reconveyance of 1852, Zeigler and wife to Turner. We are inclined to accept the ruling upon this point as right. Not, indeed, because Zeigler was incompetent to prove the facts stated, for we do not think the case is one within the exception of the Act of 1869, but because the evidence proposed was not sufficient to establish a trust estate in Mrs. Zeigler as against the vendee of the assignee. If we isolate the transaction of May 15th 1851, and consider it apart from the transactions of 1852-3, we are at least left in doubt as to whether Turner intended to vest in his daughter an interest in the land, or to abate one half of the purchase-money by way of advancement. We think the latter the better opinion, for if Turner intended to vest in Mrs. Zeigler an interest in the realty it is remarkable that her name is not mentioned in any of the papers. This however is consistent with the supposition of an abatement of the purchase-money by way of an advancement or gift, either to her separately or to her and her husband jointly. In this state of uncertainty a chancellor would refuse to decree a conveyance of the premises in dispute to Mrs. Zeigler, and, it follows, that the admission of the testimony proposed would have availed the defendant nothing, as the plaintiff would still have been entitled to a peremptory instruction in his favor. But, by the deed of Zeigler and wife to Turner, August 5th 1852, the previous arrangement, whatever its character had been, was annulled, and when the equity was revested in Zeigler by the agreement of February 26th 1853, it was limited by no trust to any one. It is true Zeigler says that at the time of the cancellation of the deed of 1852, after the execution of the articles of 1853, the parties intended to restore things to the state they occupied previously to the execution of the last-named deed. But testimony so slight as this from an interested party,, and in the face of writings solemnly executed, in which a full and ample consideration is represented as passing from the vendee to the vendor, is wholly insufficient to abrogate or modify the written contract of the parties. To permit such a result would be to dig away the solid foundations on which our Pennsylvania land titles rest, and to substitute therefor such as might be constructed for the occasion, by the interests of parties or the uncertain and often partial memory of witnesses. But the uncertainty and confusion are increased when we come to consider the acts and testimony of Mrs. Zeigler. Giving all the force possible to the testimony of Hill and Zeigler, and the interest of Mrs. Zeigler in the premises extended but to one half thereof, and that arose by virtue of the arrangement of 1851. She, however, in her notice to the assignee, March 13th 1869, claims, that by virtue of the deed of August 5th 1852, the title to the property revested in Abraham Turner, and, notwithstanding the subsequent cancellation thereof, the title still continued to be so vested, and that in the said property Elijah W. Zeigler had no interest whatever. Then, in her testimony, she claims the title by virtue of a gift from her father, and as her share of his estate. This piece of evidence does not inform us when or how this gift was made, and it ignores entirely the agreement of February 1853, which left nothing in Abraham Turner either to sell or give away, except a bare legal estate valuable to no one unless, perchance, to Turner’s widow, as a means of enforcing her maintenance as provided for in that agreement. After such allegations as these, by the chief party in interest, the testimony with reference to a trust looks, to us, like an after-thought seized upon under the stress of circumstances to bolster up a bad case. Judgment affirmed.