Opinion
November 29, 1933.
January 2, 1934.
Ejectment — Burden of proof — Title — Validity of deed — Presumption — Acknowledgment by notary — Evidence — Recording — Burden of proof — Forgery.
1. In an action of ejectment plaintiffs are entitled to recover only on the strength of their own title, not upon the weakness of that of defendant. [589]
2. In an action of ejectment in which it is contended that the deed to defendant is a forgery, from the uncontradicted evidence of a notary that he has a clear recollection of having taken an acknowledgment of grantors to an instrument to defendant and of his original docket of acknowledgments, which shows a deed to have been acknowledged before him by the grantors to the defendant on the date of recording of the deed to defendant, and from the fact of the recording itself, a presumption arises of the validity of the deed in question, the burden of overcoming which rests upon plaintiffs. [588]
Evidence — Production at trial — Rule to produce summary judgment — Ejectment — Deed — Loss — Testimony.
3. In an action of ejectment, summary judgment on a rule by plaintiff that defendant produce upon trial the deed in controversy, is properly refused where the defendant answers, averring loss of the deed, and upon cross-examination by plaintiff of an officer of defendant at the time of trial, the officer testifies that he had searched for the original deed in the files of defendant company, where it ordinarily would have been found, that he there found a certified copy of the deed which had been secured by defendant many years ago, but that he was unable to there find the original. [590]
Evidence — Surviving party — Heirs of decedent — Ejectment against grantee of decedent.
4. In an action of ejectment by plaintiffs, heirs of the deceased grantor, to recover the property in question from defendant, the grantee of decedent, on the ground that the deed to the defendant was a forgery, the plaintiffs are incompetent to testify under the Act of May 23, 1887, P. L. 158.
Judgments — Conclusiveness — Sanity — Judgment in rem.
5. A judgment of sanity entered on a verdict after a proceeding to determine the sanity of a person, is a judgment in rem and is binding on the whole world. [588-9]
Evidence — Presumption — Sanity — Continuance — Judicial decision.
6. Where the soundness of mind of a person is judicially established, the presumption is that his sanity continues until the contrary is shown. [589]
Practice — Trial — Order of proof.
7. The trial court always has the right to regulate the order of proofs. [589]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 3, March T., 1934, by plaintiffs, from judgment of C. P. Washington Co., Aug. T., 1931, No. 284, in case of Georgia Roberts, by her next friend, Margaret H. Roberts et al. v. Washington Trust Company (William D. Gordon, secretary of banking, substituted defendant). Judgment affirmed.
Ejectment. Before CUMMINS, J.
The facts are stated in the opinion of the lower court, CUMMINS, J., which was as follows:
"On June 24, 1901, was recorded a deed from George W. Roberts et ux., to Washington Trust Company, for a lot located at the southeast corner of Main and Beau Streets, in the City of Washington, this County, the consideration therefor being $70,000. This deed, bearing date of June 22, 1901, purports to have been acknowledged and delivered on that date. Washington Trust Company then took possession of and erected thereon a banking building. The grantor, George W. Roberts, died on January 2, 1909. More than thirty years subsequent to the recording of this deed, plaintiffs, three of the heirs at law of said grantor, brought this action of ejectment against defendant trust company, seeking to recover possession of this banking property.
"Plaintiffs, in their declaration, in substance allege: (a) that the deed from Roberts to Washington Trust Company was not executed by him, i. e., that it was a forgery, and that therefore he died seized of this property; (b) that Roberts, the alleged grantor, was from the date of said deed to the time of his death, insane, which prevented the running of the statute of limitations (no claim being made that the execution of this deed was procured by fraud or undue influence or otherwise, but that the grantor did not execute it); and (c) that Roberts, the grantor, died intestate, title to the property in question thereby passing into plaintiffs and others under the intestate laws. These three averments were traversed by defendant in its answer in the nature of a special plea. Under the Ejectment Act of May 8, 1901, P. L. 142, 143, these then were the sole issues to be tried.
"Upon trial, binding instructions were given for defendant, and the case now comes before the court in banc upon plaintiffs' motions for judgment n. o. v. and for a new trial.
"Plaintiffs' counsel, not having presented, upon trial, a point for binding instructions, is not now in a position to move for judgment n. o. v. under the Act of April 22, 1905, P. L. 286: Sulzner v. Cappeau Co., 234 Pa. 162; Reichner v. Reichner, 237 Pa. 540, 546; Com., for use, v. Keller et al., 106 Pa. Super. 458, 460. Plaintiffs' request to now be permitted to file such written point for binding instructions nunc pro tunc, even if we had authority to grant such request, was properly refused, for plaintiffs' counsel advanced no sufficient reason or proofs warranting any such action. But it is difficult to see how the trial court could in any case, after trial concluded, verdict rendered and jury discharged, give to such jury binding instructions or any other kind of instructions. See Butler Boro. School Dist. v. Penn Twp. School Dist., 64 Pa. Super. 208, 209-10, and Leonard Co. v. Scranton Bottling Co., 90 Pa. Super. 360, at page 364.
"Plaintiffs' motion for judgment n. o. v. could not, however, by any probability prevail, even if it had been supported by a proper written point for binding instructions, with the same refused by the trial court, for plaintiffs wholly failed to support by evidence any of the material averments contained in their declaration. Obviously, then, they were not, upon trial, entitled to binding instructions, and are therefore not now entitled to judgment n. o. v.: Delmas v. Kemble, 215 Pa. 410, 413; Duffy v. Water Power Co., 233 Pa. 107, 110.
"The deed of record from Roberts et ux. to Washington Trust Company purports to have been acknowledged by grantors before one Warne, a notary, who testified that he had a clear recollection of having taken an acknowledgment of grantors to an instrument to defendant trust company, but that unaided he was not able to tell the nature of the instrument executed. Upon further inquiry by plaintiffs' counsel, he produced his original docket wherein he kept a record of acknowledgments which had been taken by him, which docket showed a deed to have been acknowledged before him by Roberts and wife to defendant trust company on the date of said recorded deed. From these uncontradicted facts and from the fact of the recording itself arose a presumption of the validity of the deed in question, the burden of overcoming which presumption rested upon plaintiffs: Lewis et al. v. Merryman et al., 271 Pa. 255, 258; Kohn et al. v. Burke et al., 294 Pa. 282, 284.
"To overcome this presumption the only evidence offered by plaintiffs was the testimony of a nurse who testified that, on the date of the execution of this deed, the wife of the grantor was ill, and that she, the nurse, had, at that time, made inquiry concerning the whereabouts of Roberts and was unable to locate him in Washington. This testimony was, of course, insufficient either to establish the fact that Roberts was not in Washington and therefore did not execute the deed in question, or that his wife did not join therein.
"Plaintiffs having wholly failed to show that the deed in question was a forgery, proof of the other averments would necessarily become immaterial, but in proof of these plaintiffs likewise failed to produce any competent testimony.
"Plaintiffs offered records of this court showing that the grantor, Roberts, as late as in the year 1900, had been, by commission had, adjudged non compos mentis. But plaintiffs likewise established by the records of this court that the grantor had later demanded that the question of his sanity be determined by jury trial; that upon such trial he was found to be of sound mind; and that, on March 20, 1901, judgment establishing his sanity was regularly entered on that verdict. Such judgment is a judgment in rem and is binding on the whole world: Bunce v. Galbrath, 268 Pa. 389, 393, 394. His soundness of mind having been judicially established, the presumption was that his sanity continued until the contrary was shown: Com. v. Molton, 230 Pa. 399, 403; Com. v. Sushinskie, 242 Pa. 406, 414; Com. v. Calhoun, 238 Pa. 474, 486. No evidence having been offered by plaintiffs to show lack of mental capacity subsequent to his having been adjudged sane, there was then nothing to prevent the running of the statute of limitations.
"Assuming, however, for the sake of discussion, the deed in question to have been a forgery, and that the statute of limitations had for some reason not run, yet plaintiffs in such case would only be entitled to recover on the strength of their own title, not upon the weakness of that of their adversary (Parks et al. v. Penna. R. R. Co., 301 Pa. 475), yet not an iota of testimony was offered by them tending to show that the deceased Roberts had died intestate, the burden of proving which issue was, as already appears, on them. So, obviously, for any of these several reasons, plaintiffs are not entitled to judgment n. o. v.
"If the court is correct in its conclusion that defendant was, upon trial, entitled to binding instructions, then it is clear that none of the reasons assigned by plaintiffs for a new trial could avail them anything, except such rulings by the court, during trial, as may have resulted in the exclusion of testimony offered. Nevertheless we will consider these several reasons assigned in detail.
"The trial court always has the right, as it did in this case, to regulate the order of proofs: Schuck v. West Side Belt R. R. Co., 283 Pa. 152, 157; Jarvis v. Bell, 296 Pa. 568, 576. There is, of course, quite a distinction between excluding testimony and merely controlling the order in which it is produced. The action by the court in this case in suggesting the order of proof to be followed, is the subject of complaint in plaintiffs' 18th, 24th and 25th reasons assigned.
"Plaintiffs' counsel had ruled defendant to produce upon trial the deed in controversy. To this rule defendant filed answer averring loss of the same; and plaintiffs showed, by the president of defendant company, called by them as on cross-examination, that he had searched for the original deed in the files of defendant company, where it would ordinarily have been found, that he there found a certified copy of this deed which had been secured by defendant company many years ago, but that he was unable to there find the original. Failure to produce, under such circumstances, clearly would not entitle plaintiffs to summary judgment, refusal to grant which is plaintiffs' first reason assigned in support of their motion for a new trial. The second reason assigned is without merit, as all relevant testimony offered on the subject of forgery was properly admitted.
"Margaret H. Roberts, being a daughter of George W. Roberts, deceased, and, as plaintiff, claiming to be entitled, as one of his heirs, to recover the property in question from defendant, a grantee of her father, was, under section 5 (b), of the Act of May 23, 1887, P. L. 158, clearly incompetent. Crothers v. Crothers, 149 Pa. 201, 205; King v. Humphreys, 138 Pa. 310; Campbell v. Brown, 183 Pa. 112, 118-20; Fiscus v. Fiscus, 272 Pa. 326, 328; Boyd et al. v. Kilmer, 285 Pa. 533, 540. Refusal to permit this witness to testify is the ruling complained of in plaintiffs' 3d and 23d reasons assigned. The 4th reason assigned is fully considered in disposing of plaintiffs' motion for judgment n. o. v.
"Plaintiffs' fifth reason assigned is wholly without merit. The trial court did not construe any will of Roberts, deceased, as no such will was offered in evidence. The burden of proving intestacy was on plaintiffs, but as already observed, no evidence was offered by them on that issue. Obviously, from what has already been said, the 6th reason assigned is wholly without merit. The legal contention advanced by plaintiffs' 10th reason assigned is so clearly erroneous that it merits no discussion. The 11th reason is without merit.
"Plaintiffs had ruled defendant to produce, upon trial, vouchers showing payment of the consideration money for the property in question, but closed their case without calling for them. If relevant, they were only relevant in plaintiffs' case in chief, for defendant offered no testimony contradictory of any fact shown by plaintiffs. Defendant had shown nothing to be rebutted, so the case was closed on testimony. After the case was so closed on testimony, plaintiffs' counsel remarked that he had forgotten to call for the vouchers, but made no request either to be permitted to open his case in chief or to be permitted to offer rebuttal. After considerable delay the court insisted upon counsel proceeding with the trial of the case. Even although the case had been closed on testimony, defendant's counsel, as shown by the record, expressed a willingness to permit plaintiffs' counsel to see these vouchers, so that there was no necessity for the court to compel defendant's officers to do what they had already offered to do. The 12th and 13th reasons assigned, therefore, cannot be sustained. The 14th and 15th reasons assigned are sufficiently covered in our discussion of plaintiffs' motion for judgment n. o. v.
"The matter complained of in the 16th reason assigned is not even involved in the issues joined. The 17th reason assigned is based on the assumption that plaintiffs' title "had been conclusively established," whereas there was no proof warranting such assumption. This point is wholly without merit.
"Plaintiffs in their 19th reason assigned complain of a supposed construction placed by the court upon the testimony of one Miss Durstine, whereas the court was not undertaking to construe, but was ruling on the admissibility of the testimony offered.
"The legal proposition advanced in the 20th reason is so fallacious as not to merit discussion. The testimony of the president of defendant company that he had searched through the files of the bank for the deed in question and had found instead in the files, where it should have been, a certified copy of this deed, which had been secured some years before, but did not there find the original, was evidence of the loss of such original, and the court properly held that the defendant's answer filed to the effect that this deed had been lost, was not by this testimony impeached. This ruling is made the subject of plaintiffs' 21st reason assigned.
"Counsel for plaintiffs assumes in his 22d reason assigned, that the burden of proof was on defendant, whereas, as already explained, such burden was on the plaintiffs.
"The case was not decided on the theory, as suggested by plaintiffs' counsel, in their 27th reason assigned, that the case should have been tried in the orphans' court.
"And now, to wit, June 17, 1933, plaintiffs' motions for judgment n. o. v. and for a new trial, refused."
Verdict directed for defendant and judgment thereon. Plaintiffs appealed.
Error assigned, inter alia, was direction of verdict, quoting record.
Robert H. Locke, for appellants.
Richard G. Miller, with him John C. Judson and Norman E. Clark, for appellee, were not heard.
Argued November 29, 1933.
The learned judge of the court below, recently deceased, admirably stated the facts and the law applicable to this case, and the judgment is accordingly affirmed on his opinion.