Crosland v. Mutual Saving Fund

Opinion,

Mr. Justice Williams :

This was a proceeding by a purchaser at sheriff’s sale to recover possession of the purchased premises. The plaintiff below, The Mutual Saving Fund of Pottsville, showed a regular paper title. The evidence began with a deed from Ryland to John J. Crosland for two lots of land, of which the lot in controversy is one, bearing date July 15,1867. Then followed a mortgage of both lots by Crosland to the Saving Fund for $3,000 dated November 29, 1872, [recorded the next day]. Upon a judgment obtained on this mortgage the sheriff’s sale was made to the plaintiff in 1882. This showing entitled the plaintiff to recover against J ohn J. Crosland and all persons holding under him, and put the defendants upon a showing of the title under which they claimed a right to the possession.

They set up a title under Catherine Crosland the mother of John, alleging that she acquired title from her son before the mortgage to the Saving Fund was given. Their allegation was that in 1867 John borrowed about $3,100 from his mother, to aid him in building a block on both lots, under an agreement that he would convey to her the easterly lot, the' one now in controversy, with the structure erected thereon, in payment of the money so borrowed; and that in pursuance of this contract he did convey said lot to her by a deed dated August 5,1872, which she did not record until in 1877, but under which she took possession, and let the building to tenants. Upon this evidence, two principal questions are raised. First, was the deed by John to his mother made in good faith, or was it a device to cheat and defraud the Saving Fund from which he was then negotiating ox about negotiating the loan of #3,000 ? If the deed was fraudulent the plaintiff was entitled to recover. If it was not fraudulent, then the second question was reached, viz.: did the Saving Fund have notice of this 'unrecorded deed to Mrs. Crosland ? If so the defendants, except John J. Crosland the mortgagor, were entitled to the possession as heirs at law of Catherine, their mother, to the extent of their undivided interest in the premises.

Upon both questions the testimony of John J. Crosland was largely relied on by the defendants. He testified to having borrowed about #3,100 of his mother in 1867; to the agreement to convey to her one of the lots in payment of this loan; to the taking possession by her of the dwelling part of the block in 1868; and to having given explicit notice of her ownership of the lot to Dornan, the solicitor of the Saving Fund, when the loan upon the mortgage was applied for in 1872. The plaintiff sought to impeach the witness and destroy his credibility by showing his acts and declarations of a character wholly inconsistent with his testimony and with the bona fides of his conveyance to his mother. The offers embraced in the assignments of error Nos. 4, 5, 6, 8 and 9 were made for this purpose, and were properly admitted. They tended to show a line of conduct extending up to the time of the recording of the deed to his mother and the assessment of the lot to her in 1877, which was not to be reconciled with his testimony and which, if believed, was sufficient to discredit him as a witness. The charge of the court and the answers to the points so far as they related to this subject, properly submitted the bona fides of the deed from Crosland to his mother to the jury for their determination, and with it the question of the credibility of John J. Crosland. The acts and declarations of John M. Crosland in connection with the negotiation of the second loan were properly admitted. He made the preliminary negotiations for it, offering as security the two lots embraced in the former mortgage; and his son consummated the arrangement by giving a mortgage upon both lots in 1874, as he had done in 1872. What was done by the. father was adopted and acted upon by the son in such manner as to make the father’s acts and declarations his own.

Moreover, the relationship of these parties and the circumstances as disclosed by the evidence justified their admission upon another ground. A son about to contract a loan makes a deed to his mother which is kept from the records. He goes into, possession of part of the block and the remainder is occupied by tenants put in possession by himself or his father. After two years the father opens negotiations for a second loan upon the security of the same lots, with no mention of any interest of his wife in either of them. The son makes the new mortgage covering both, and acknowledges it before his father as a justice of the peace. When the Saving Fund insists on the insurance against fire, bargained for as collateral to the loans, separate policies are issued by the father as an agent of the insuring company and the mother transfers her policy to the Saving Fund, “ as collateral security in the case of fire for certain loans made John J. Crosland on the above described premises.” This transfer was witnessed by the father and by him approved as agent of the insurance company. Here is evidence of knowledge on tho part of the mother and father of the loans by the son, and of their co-operation in obtaining them and complying with the terms on which they were obtained. The assignment of the policy does not relate simply to the last loan made in 1874, but, to “ certain loans made John J. Crosland on the above described premises” and shows knowledge of the existence of both loans. These facts and circumstances taken in connection with tho subsequent assertion by both father and son of a valid title in the mother were competent evidence upon the subject of the bona fides of the conveyance by John to his mother. Their value was for the jury, but they tended to show a combination between these parents and their son to make use of the deed to the mother to cheat and defraud the Saving Fund.

The fifteenth assignment of error relates to the answer given by the court below to defendants’ first point. The instruction asked for by this point was, if the jury should find that Mrs. Crosland gave to her son about $3,100 in 1868 with 'which to build the dwelling, upon a promise that it should be conveyed to her in consideration therefor, and he afterwards in 1872 made the conveyance to her in accordance with such agreement, she had a good title to the property which at her death descended to her heirs. The learned judge prefaced his answer with this statement: “ To prove a parol sale of lands, the proof should and must be clear, precise, distinct and satisfactory.” This statement was unnecessary. There was nothing in the point to call for it, and there was no question raised in the case to which it was applicable. • The parol agreement if made in 1868 was relied on simply as showing the consideration for the deed from the son to his mother; but the defendants’ title rested on the deed, and the court properly instructed the jury that if the deed was made in good faith and the Saving Fund had notice actual or constructive of Mrs. Crosland’s title, the plaintiff could not recover. We think therefore that the prefatory remark of the learned judge could not have misled the jury. It was superfluous, but no question was submitted to the jury in regard to the alleged parol agreement, and their attention was properly drawn to the real questions on which the validity of the deed depended.

The 19th assignment of error raises a more serious question. The plaintiff’s third point asked an instruction upon the subject of notice by the possession of Mrs. Crosland by her tenants. It was as follows: “ If the property in suit was built with the building occupied by John J. Crosland and is a part of the same building under one roof, commonly denominated a double house, one of which was in 1872 occupied by John J. Crosland, and the other if occupied, was by a tenant .... and there were no front porches to the house in suit, and it was otherwise apparently unfinished, and the rents were sometimes paid to John J., and if the facts were such as to appear to an observer that the two houses were one property, there was not such clear, unequivocal evidence of possession in Catherine L. Crosland as to make it a duty of the plaintiff to inquire of the occupants of any of said premises, and the plaintiff is entitled to a verdict for the whole of said premises.” This was affirmed, and the jury thereby instructed that the plaintiff was relieved from the duty of making inquiry, if the facts grouped in the point were found by them.

These were, first, that the house in controversy was built with that occupied by John as part of the same building under one roof, and that together they constituted a double house; second, that when the mortgage was given, John was in possession of the store and the dwelling was occupied by tenants; third, that there were “no front porches to the house in suit” and it was apparently unfinished; fourth, that the rents were sometimes paid to John. There was no controversy over either of these facts. The store and dwelling were erected together, were under one roof, and made a “double house”; the store was in the possession of John and the dwelling in that of tenants; there were no finished porches in front of the building in 1872, and, although not visible to an observer, the rents were “sometimes paid to John.” The fifth clause in the point, “ and if the facts were such as to appear to an observer that the two houses were one property,” taken in its connection with what precedes it, seems naturally to refer to the facts grouped in the point. The effect of the affirmance of this point was to instruct the jury that the four facts brought to their attention were sufficient to relieve the plaintiff from the duty to make inquiry on the premises, before taking the mortgage, or, that from those facts they might find that “to an observer the two houses were one property,” so that the observer would have no notice of the separate possession of the dwelling. The point and answer were clearly misleading. The fact that both parts of a double house are built together affords no presumption against the occupant of either part. They could not be conveniently or economically built in any other manner. The fact that the claimant of one part of a double house is in possession by tenant, instead of in person, is immaterial. The possession of the tenant is the possession of his landlord. The absence of front porches is a circumstance of no significance. The question for the jury, so far as this subject was concerned, was whether the building was suitable for or fairly capable of separate occupancy, and whether the modes of access to its parts and its external appearance were such, as to make this apparent to an observer. If so, inquiry was a duty. The facts brought together in the point whether taken singly or collectively afford no basis for a finding upon this question, and the natural effect of the affirmance was to invest these facts with a significance to which they were not entitled.

We are reluctant to reverse this case for the error pointed out in this assignment, but after a careful examination of the testimony we can not see how it is to be avoided. It is probable that the case was disposed of by the jury on the question of the bona fides of the deed to Mrs. Crosland, but we cannot say certainly that it was so. It is possible that the question of notice was that on which the verdict was reached, and that the instruction we have considered guided the jury to their conclusion. The other assignments of error are not sustained.

Judgment reversed and a venire facias de novo awarded.