Littieri v. Freda

Opinion by

Mr. Justice Potter,

In this action of ejectment, the issue was framed Under the provisions of the Act of June 10, 1893, P. L. 415, to try the title to certain real estate situated in Lackawanna County, partly in the City of Scranton and partly in the Borough of Dunmore. The real estate in question belonged to one Vito Girardi prior to July 9,1908, and on that date he conveyed it to the defendant Freda by deed duly executed, acknowledged and delivered, which was recorded on the following day. On the day after the deed was delivered, and on the same day it was recorded, July 10,1908, a judgment for $300 was entered in the Court of Common Pleas of Lackawanna County, by Alexander Popoli against Vito Girardi. Execution was issued oil this judgment against the property conveyed to defendant, and it was condemned and sold by the sheriff as the property of Girardi. It was purchased by Littieri, the plaintiff in this case, for $150, and a sheriff’s deed to him was duly acknowledged and recorded. Plaintiff was a brother-in-law, and was also a creditor of Girardi. The property conveyed was heavily encumbered. Plaintiff alleged that the conveyance to defendant was not a bona fide transaction, but was without consideration and was intended to defraud Girardi’s unsecured creditors, and he averred that the title still remained in Girardi, and that the property was therefore subject to the Popoli judgment under which it was sold. Defendant claimed to have paid a total consideration of $18,000 for the property, including the encumbrances against it, an indebtedness of Girardi to him of $2,750, the sum of $1,700 paid in cash when the deed was delivered and $700 paid in cash subsequently. Defendant maintained that these items constituted a full and fair price for the property, and denied that there was any arrangement by which he was to hold it for Girardi or that the latter retained any interest in it. The trial in the court below resulted in a verdict for defendant, on which judgment was subsequently entered. Plaintiff has appealed.

From the record it appears that Yito Girardi who was the original owner of the property in question, and was also the defendant in the judgment on which the sheriff’s sale was had, testified at the trial that when the deed was delivered to the defendant Freda, the latter paid him $1,700 in cash as part of the consideration. Upon cross-examination plaintiff’s counsel asked the witness what he did with this money, and whether or not he put it in bank. Objections to these questions were sustained by the trial judge on the ground that they were not cross-examination and were irrelevant and immaterial. These rulings are the subject of the first, second and fourth assignments of error. It appears from the record, that when these excluded questions weré asked, the witness had already been subjected to a long cross-examination. The question at issue was, whether or not defendant paid him $1,700 in cash when the deed was delivered. The relevancy of an inquiry as to what he did with the money after he received it, is not- apparent. We are not convinced that there was any abuse of discretion upon the part of the trial judge in sustaining defendant’s objection to these questions. In Quigley v. Thompson, 211 Pa. 107, the present Chief Justice said (p. 109): “While the general principles applicable to the subject are clearly defined, it is in practice often difficult to determine the exact limits of proper cross-examination. Its range must of necessity rest largely in the discretion of the trial judge.” That statement applies aptly to the present case, and these assignments are therefore dismissed.

In the third assignment of error complaint is made of the exclusion of a question put by plaintiff’s counsel on cross-examination; but the record shows that the question was answered by the witness before the objection was offered, and no motion to strike out the answer was made. In the fifth assignment of error counsel for appellant complain of the admission in evidence of a blank judgment, note book produced by one of the witnesses. In neither of these assignments, the third or the fifth, does it appear that any exception was taken to the ruling of the trial judge of which complaint is made, and reference to the notes of testimony shows' that no exception was taken to either of the rulings in question. These assignments will therefore not be considered.

In the sixth and seventh specifications it is alleged that the trial judge erred in refusing to permit counsel for plaintiff to ask the defendant Freda on cross-examination where he obtained the money with which he paid off the liens against the property conveyed to him by Girardi, and whether he had the money on hand at the time, or obtained it by loan. These questions were objected to as immaterial and as not being cross-examination, and the objections were sustained. It would perhaps have been better to have allowed these questions to have been answered. Where there is an allegation of fraud the door should be opened wide to the admission of evidence. But there was practically no dispute as to the fact that Freda paid to Girardi in cash the balance of the purchase money which was due to him at the time the deed was delivered. This appears from the testimony of Freda, Girardi, Mr. Lewis the attorney who had charge of the matter, and Mr. Taylor his partner. The questions which were excluded did not relate to this money paid by defendant to Girardi when the deed was delivered. ^Reference to the notes of testimony shows that-the questions referred to the money used in paying off liens against the property conveyed after the cash payments had been made to Girardi, and after the deed had been delivered. It does not seem to be material where defendant got the money for the latter purpose; that is, for the payment of the various liens against the property, so long as it did not come from Girardi. There was no offer to show this, and defendant was not even asked whether the money which he used for the payment of liens belonged to Girardi or was his own. If such a question had been asked it would have been admissible. The excluded questions came after a long examination and cross-examination in which the subject had been quite fully covered, and we cannot see that the disallowance of these questions amounted to material error. The range of a cross-examination must to a considerable extent be left to the sound discretion of the trial judge, and unless that discretion has been plainly abused to the injury of the party complaining, it is not ground for reversal. We do not see that there was any such abuse of discretion in this case, or that it is apparent that the appellant was injured. These specifications are therefore not sustained.

In the eighth assignment of error complaint is made of the overruling of objections to a question of defendant’s counsel addressed to plaintiff when under cross-examination, as to the amount he paid for a judgment for $133 against Girardi, which he had purchased. The relevancy of this testimony is not apparent, but it does not appear that plaintiff was injured in any way by the answer to the question, and its admission does not therefore amount to reversible error. •

The ninth specification alleges error in the admission of the testimony of the witness W. R. Lewis, who was defendant’s attorney in the matter of the settlement with Girardi, and in the conveyance of the properties, as to statements made to Mm by Girardi in the presence of defendant, with reference to the judgments and mortgages on record against him, the amounts due thereon, and as to the amounts for which settlement could be made. Plaintiff’s case rests upon the allegation that the conveyance by Girardi to defendant was not made in good faith, and was without consideration, and in fraud of creditors. As the witness Lewis was , present when Girardi and defendant made their bargain, which was verbal only, we think he was entirely competent to testify as to the terms of the contract, and as to what was said by the parties when it was made. In 1 Elliott on Evidence, par. 537, it is said: “Declarations, which accompany and are a part of the fact or transaction in controversy and tend to illustrate or explain it, such transaction itself being admissible, are also admissible as being so connected as to be a part of such fact or transaction.” In 11 Am. & Eng. Ency. L. (2d Ed.) 523, it is said: “Declarations or acts accompanying any act or transaction in controversy and tending to explain or illustrate it are received in evidence as part of the res gestse.” Under these principles we think the evidence of Mr. Lewis was properly admitted.

Further complaint is made in the tenth assignment that the trial court erred in admitting in evidence a memorandum made by the witness Lewis at the settlement, showing the figures according to which the settlement between Girardi and tbe defendant was made. Tbe paper was admitted in evidence against the objection of counsel for plaintiff. Tbe statement was clearly admissible in connection with tbe testimony of tbe witnesses as showing tbe details of tbe settlement between tbe parties. It corroborates tbe testimony of defendant and of Girardi and of Lewis. It was not offered as being evidence in itself of tbe facts set forth in the paper, but in corroboration of tbe testimony of Mr. Lewis, and as part of tbe transaction between Girardi and tbe defendant. In 9 Am. & Eng. Ency. L. (2d Ed.) 901, it is said: “It has been stated as a general rule that entries made by private parties, in tbe ordinary course of their business, are admissible in evidence if they are contemporaneous with tbe facts to which they relate, and if they are made by parties having personal knowledge of tbe facts, and are corroborated by their testimony.” Tbe paper here in question falls within this rule, and it was properly admitted for tbe purpose for which it was offered.

Tbe assignments of error from tbe eleventh to tbe fifteenth inclusive are to tbe refusal of tbe first, third, fourth, fifth and sixth points for charge submitted by plaintiff. These points were all refused without being read. Tbe first and third of these points were properly refused, for tbe reason that they made tbe question of fraud depend entirely upon tbe motive of tbe grantor. As counsel for appellee suggest, an affirmance of these points would have been in effect an instruction to tbe jury that if they found that the grantor’s motives were dishonest the deed was’ void, even though tbe grantee acted in perfect good faith. Tbe controlling principle in such a case is stated in Reehling v. Byers, 94 Pa. 316, where it is said (p. 322) : “In this we must look to tbe motive of tbe creditor, and if that was honest and lawful, tbe intent of bis debtor does not enter into tbe question. As was said by Mr. Justice Coulter, in Scott v. Heilager, 14 Pa. 238, ‘One man cannot be prejudiced by the fraud of another, of which he has no notice, nor opportunity of receiving notice.’ ” The fourth point was properly refused for the reason that it was predicated upon the fact of an insolvent debtor making a conveyance in part payment of his debts, but reserving a benefit himself. In the present case there was nothing to show that the conveyance was not absolute, and there was no reservation of anything to the grantor. The fifth and sixth points were properly refused for the reason that, as suggested by counsel for appellee, they contemplated the rendering of a conditional verdict. It is only in an action of equitable ejectment that a conditional verdict can be rendered. The present action is in no sense an equitable ejectment, for the plaintiff claims under a purely legal title. In McKendry v. McKendry, 131 Pa. 24, Mr. Chief Justice Paxson said (p. 36): “The action of ejectment is often a substitute for a bill in equity, and we have in our practice what is known as an equitable ejectment. It is used constantly to enforce specific performance of contracts for the sale of real estate, and in some other instances. It is a convenient and plastic remedy, and more speedy than a bill in equity.” In Riel v. Gannon, 161 Pa. 289, Mr. Justice Dean said (p. 293) : “An equitable ejectment in this State is a substitute for a bill in chancery, to enforce specific performance of a contract for the sale of land.” But in the case at bar the plaintiff is asserting a legal title to the land which he claims to have acquired by his deed from the sheriff. He does not assert an equitable title, nor do the principles governing cases of equitable ejectment apply to this situation. We know of no case in which a suit like the present one has been treated as an equitable ejectment, in which a conditional verdict may properly be rendered.

The assignments of error are all overruled, and the judgment is affirmed.

Mr. Justce Stewart dissents and would sustain the assignments of error alleging that counsel were not given sufficient scope in cross-examination.