Cummings v. Glass , 162 Pa. 241 ( 1894 )

Opinion by

Me. Justice Geeen,

The deed under which the defendant claims title to the land in controversy, is an absolute deed in fee simple from Andrew Boyd Cummings to Alexander F. Glass. It is dated March 30, 1866, and it was duly acknowledged the same day before a notary public. The signature of the grantor was attested by the signatures of two witnesses, and the execution of the deed was fully proved. Besides the recital of the payment of the purchase money contained in the deed, a receipt for the purchase money at the foot of the deed was signed and sealed by the grantor, and this signature was also attested by the same two witnesses who attested the deed. If this deed was delivered, the grantor’s title was certainly and absolutely divested, and the plaintiffs have no case. To this effect the learned court below charged the jury with entire correctness. The whole controversy before the jury turned upon the one question of deliver}*, and the jury was so clearly and frequently instructed upon this subject that there can be no question that they fully understood precisely what they were to decide. The question of delivery was, of course, a question of pure fact which the jury alone could decide. They rendered a verdict in favor of the defendant and therefore decided that the deed was delivered and the title of the grantor divested.

Unless the plaintiffs’ contention that there was no sufficient evidence of delivery to justify the court in submitting that question to the jury can be sustained, the judgment should be affirmed. There are numerous assignments of error, many of which are quite unimportant, and a considerable number may be grouped together in considering them.

The chief reason for questioning the fact of delivery was that the deed from Cummings to Glass was found, after his death, in a safe in which Cummings kept certain papers belonging to him. Much of the force which might otherwise be attributed to this fact is taken away by the circumstances surrounding it. This safe was kept at the house 910 Pine street, which belonged to Mrs. Glass, and in which she and her family lived when in the city. The safe was used for years in common by Mrs. Glass and Mr. Cummings, each of them having a key to open it. Mr. Cummings lost his key and used the one belonging to Mrs. Glass for some years before his death. Mrs. Buehler, a married daughter of Mrs. Glass, and a member of her family for many years, liad the actual custody of the key belonging to her mother. Mrs. Buehler died in 1883, and after that, until the deatli of Mr. Cummings in 1891, this key was kept by Miss Catharine Ubil, who was also a member of the family from 1875, to and beyond the time of Mr. Cummings’s death, except for a period of about sixteen or eighteen months from the spring of 1883 to the autumn of 1881. Miss Ubil received the key from Mrs. Buehler shortly before her death and retained it continuously thereafter. During the life of Mrs. Buehler ¡.the safe key was kept in a small iron box in a drawer in the room of Mrs. Buehler, and the key of the iron box was kept by Mrs. Buehler during her life, and by Miss Ubil after her death. This box contained articles of jewelry, money and private papers belonging to Mrs. Glass, and it cannot be questioned under the evidence that Mrs. Glass had, at all times, free and unobstructed access to the safe in which the deed was ultimately found. At the time it was found the safe contained two bundles of papers, one containing the title papers to the premises No. 1626 North 15th street, Philadelphia, which belonged to Mr. Cummings, and the other containing the title papers to the Lin wood property, the one nowin controversy, and in this last bundle, and as part of it, was the deed now in question. There was a rubber band around the whole of the two bundles, and the person who opened the safe in the presence of Mrs. Glass, a Mr. Fiss, agent of the executor corporation, testified that there was nothing in the safe except these two bundles. It was in evidence that Mrs. Glass had other valuables and papers elsewhere, and that Mr. Cummings had large amounts of securities and papers at other places. It is apparent, therefore, that no very serious inference of an exclusive possession, on the part of Mr. Cummings, of the deed in question, was to be derived from the circumstance that it was found in such a place of deposit as this.

But the defendant gave evidence to prove that, such as it was, the possession thus maintained, was derived from her, for the purpose of custody for her, and for her benefit; and in the same connection evidence also was given, that the deed was in the exclusive possession of Mrs. Glass, and, by probable inference, in the possession of Mr. Glass, before the death of Mrs. Buehler, and a number of years before the death of Mr. Cummings.

Miss Ubil testified that she entered the family as a dressmaker in the year 1875, and remained there as a member of the family, with the brief interruption before mentioned, until after the death of Mr. Cummings. She testified that after the death of Mr. Glass, Mrs. Buehler, his daughter, took charge of the business papers of the family, and that she kept quite a number of papers in a certain box which, she said, was kept, when the famity were at Lin wood, “in the second bureau drawer in Mrs. Buehler’s room, in her bedroom,” and when in Philadelphia, “ in the wardrobe in the second story front room, Mrs. Buehler’s room.”

She also testified that on one occasion Mrs. Buehler sent her to the box to get some money, and said, “I put my hand in to get the money, and in drawing my hand out with the money my sleeve drew a deed out.” After saying that Mrs. Buehler was in the room at the time, she was asked: “Q. What did you notice about the deed? A. I knew it to be a deed. Q. Did you know from whom to whom? A. Yes, sir ; from A. Boyd Cummings to Alexander F. Glass. Q. How did you know that; by seeing it or hearing something? A. By seeing it. . . . . Q. What became of the deed then after that ? A. I put it back in the box. Q. Was anybody else present? A. No one but Mrs. Buehler and myself.” She was then shown the deed in question, and was asked: “Q. Did you ever see that deed? A. Yes, sir. Q. When was it? A. During the summer of 1881 or 1882. Q. Where? A. I took it,out of this box at Linwood. Q. That is the paper? A. That is the paper. Q. What was done with it after you took it? A. I put it back.”

Of course, upon the foregoing testimony, it was a justifiable inference that Mrs. Buehler, having taken charge of her father’s papers after his death, received this deed as a part of those •papers. The mouths of both her father and herself are closed by death, but the natural inference that a man has the custody and control of his own papers during his life, is entirely appropriate to the occasion, and would be quite sufficient to justify the jury in adopting it in this instance, and if the jury believed the witness, and there is no reason, apparent or suggested, why they should not believe her, they may readily have found that Mr. Glass had possession of this deed in his lifetime and at the time of his death, and that his daughter received it as one of his valuable papers. Upon that inference there would be an end of this case, as the fact of delivery to the grantee would be naturally, almost necessarily, inferred from the grantee’s possession of the deed long after the time of its execution. On the testimony of this witness alone the verdiet of the jury can be readily sustained. She was entirely disinterested, not contradicted in the slightest particular, and altogether unimpeached. There is really no room in her testimony for any inference that the deed was received by Mrs. Buehler, from any other source than from Mr. Glass, as one of his papers which came into her possession after his death. If it had been delivered to Mrs. Glass by Mr. Cummings there was no reason why it should not remain in her custody, as she was still living. There was not a shadow of testimony that it was delivered by Mr. Cummings to Mrs. Buehler, and the next incident in the testimony distinctly proves that no such theory can be entertained.

For the witness next proceeds to detail the action of Mrs. Buehler when she was about to die, and this statement easily and naturally accounts for the circumstance that the deed was found in a safe in which Mr. Cummings kept some of his papers. The witness testified that on the 18th of May, 1883, which was Friday, before the following Monday on which she died, an interview took place between Mrs. Buehler and Mr. Cummings in the presence of the witness, in the bedroom of Mrs. Glass at her home, 910 Pine street, Philadelphia. What took place is thus described : “ Mr. Cummings came into the room and Mrs. Buehler commenced to talk to him about her mother’s business affairs and the papers. She asked Mr. Cummings to look after her mother and daughter, and she asked him to look after all the papers and attend to the business of the family ; as Mr. Cummings had charge of some of the affairs,she gave him charge of the rest, and he promised her he would; he said you need not fear for your mother ; after that she was rolled back into the second story back room in a rolling chair. . . . . And we went to the locked drawer and she showed me how to open this drawer, and from it we took a brown package of papers with a rubber band on it, and she asked me to give it to Mr. Cummings; I took them into the second story front room and handed them to Mr. Cummings and told him, ‘there are the papers that Mrs. Buehler sent in,’ and he took them and left the room. Q. Can you say whether or not you ever saw that package of papers afterwards? A. Yes, sir, several times. Q. Where ? A. In the large safe. Q. At Pine street ? A. Yes, sir. Q. Can you say covering what length of time ? A. Between that time and up to four years, three or four years before Mr. Cummings’s death. Q. What uses was that safe put to ? A. To keep papers and jewelry in for the family, and also Mr. Cummings ; we all used it. Q. The family and Mr. Cummings both used it, did they ? A. Yes, sir. Q. When did that use of it first commence ? A. I don’t know ; my earliest recollection of it is that it was used that way. . . . Q. Do I understand you to say that that use of the safe continued from your earliest acquaintance with it down to within three or four years of his death? A. Yes, sir.”

On cross-examination the witness testified: “ Q. Did I understand you to say that you had a key of the large safe at 910 Pine street ? A. Yes, sir. Q. When did you get that? A. Friday morning before Mrs. Bueliler died. Q. And the same day that you have testified that an interview took place with Mr. Cummings ? A. Yes, sir. Q. And you kept that until after the death of Mr. Cummings. A. Yes, sir. Q. Who else had a key during that period? A. Mr. Cummings. Q. And these were the only keys you knew of? A. The only keys I knew of. Q. You stated that there were things belonging to the Glass family kept in that safe, as I understand? A. Yes, sir. Q. What kind of things ? A. Papers and jewelry. Q. What papers did you ever see there ? A. I saw the deed to the Pine street house was there and there were other papers there; I can’t remember, I can’t recollect that; but there was jewelry kept there by all the family. . . . Q. You left in 1883 ; it must have been immediately after Mrs. Buehler’s death ? A. It was. Q. Just after you got the key then ? A. A short time after, yes, sir. Q. What was done with the key then ; you went away ? A. I had charge of the key; it was kept in this box (indicating) and I had charge of the key to this box. Q. Don’t you mean you had the key that was to that box ? A. I hadn’t it always with me; I had charge of it; I had it locked up. Q. I understand that into this box you put the key to the fire-proof? A. Yes, sir. Q. And you locked this box? A. Yes, sir. Q. And sometimes you had the key to this box? A. No ; I always had the key to this box.”

Being further interrogated upon cross-examination, in reference to the package of papers, handed by her to Mr. Cummings, she testified as follows: “ Q. Did you examine the package of papers when you took it in the month of May, 1883, from the front room to the back room? A. No, sir. Q. Did you ever open it? A. No, sir. Q. Would you say, after the years that followed, you saw that package of papers in the safe; are you perfectly sure it was that package of papers ? A. Yes, sir. Q. Was there anything else with it? A. When I saw it? Q. In the safe afterwards? A. Please ask that question again. Q. When you saw the package of papers which you say was the package that Mrs. Buehler had given you to carry to Mr. Cummings, in a subsequent year and in the fire-proof, are you sure or not there was nothing with them ? A. No; I didn’t notice whether there was or not. Q. It still had the gum band around it? A. Yes, sir. Q. Do you know whether it is the same gum band? A. No, sir. Q. Do you know whether the gum band that was around it passed around any thing but the package you saw in 1883? A. No, sir. Q! And yet you know it is the same package? A. It is the same package or one exactly like it. I know the package. Q. You know its-size? A. Yes, sir; I recognized it always here before. Q. Did Mr. Cummings ever borrow the key that you had of the Pine street safe? A. Yes, sir. Q. Often? A. He has on several occasions. Q. When was the last time ? A. Within a couple of years of his death.”

It will not be necessary to pursue the citations of testimony further. It was only desirable to do so in order to determine intelligently whether there was evidence sufficient to sustain the verdict, and therefore sufficient to warrant the court in leaving the question of delivery to the jury. It is only necessary to add that, in our opinion, after careful examination of the evidence, and of the entire argument of the learned counsel for the appellants, it would have been the gravest error to withdraw the case from the jury. Furthermore we consider that not only was it proper to submit the question to the jury, but that their verdict was abundantly justified by the evidence, and that any other verdict would have been contrary to the weight of the evidence, and to the manifest justice of the case. We cannot conceive that there could be any higher or stronger evidence of an intent on the part of Mr. Cummings to convey this land to Mr. Glass than the fact that he caused to be prepared, and duly and deliberately executed, in the presence of attesting witnesses, a solemn deed for the same which he duly-acknowledged before a proper officer. There would be nothing to question the full legal efficacy of this deed if it had not chanced to be found in a safe in which Mr. Cummings kept some of his papers. But that circumstance, which is in no case conclusive, is of the most feeble significance when considered in the light of the testimony. The safe was at no time in the exclusive occupancy of Cummings, and was at all times used as well by the Glass family, who always held, a key to open and lock it. It was a receptacle and depository, as well of the papers and valuables of the Glass family, as of Cummings, and was constantly used as such. For several years before the death of Cummings he had no key to the safe, and when he wished access to it he was obliged to borrow the key of the Glass family. It is obvious therefore that the mere presence of the Glass deed in the safe afforded no inference of any weight worth considering, that the deed was in the exclusive possession of Cummings. Its deposit there was entirely consistent with its possession by Mr. or Mrs. Glass. So much for the inferences which arose simply from the bare fact of its presence in the safe, illustrated only b3>- proof of its use, its custody and its locality, which was in the home of Mrs. Glass. But, in the light of the testimoi)3' of Miss Ubil, who distinctly and positively testifies that she saw it in 1881 in the small box of Mrs. Glass, with which Cummings had nothing to do, and in which nothing of his was kept, that this was ten years. before the death of Cummings, that it was after the death of Glass, whose papers were taken in charge by his daughter, Mrs. Buehler, there is no place anywhere in the case for an inference that the deed had never left the possession of Cummings and therefore had never been delivered to Glass. The non-delivery theory has, at the very best, nothing but an inference to support it. When the basis of the inference is removed the theory is destitute of all support.

It will readily be seen that when the package of papers was delivered by Miss Ubil to Mr. Cummings, a fact had transpired which entirety accounted for the presence of the deed in the safe even if the safe had been in the exclusive occupancy of Cummings. For although Miss Ubil did not examine the individual papers contained in the package, and therefore could not say positively that the deed was there at that time, yet she did absolutely identify the package. When the deed was found it was in that package, and the inference is most natural, indeed almost conclusive, that it was there when she delivered the package.

All of this testimony was for the jury and they have found that the deed was delivered. The testimony being in our opinion amply sufficient to sustain the'verdict, the fact must be considered as established. There was other corroborative testimony but it is not necessary to consider it. So far as possession of the property is concerned, it was entirely undisputed that the Glass family occupied it every summer after the purchase. Mr. Cummings was with them most but not all the time. The contention that because he paid the taxes, insurance, mortgage money and perhaps other expenses, he was the owner, is only of the slightest value against the absolute deed. In no point of view could such payments revest the title in Cummings. He was an old man, a bachelor, a man of wealth, he resided with the family of his own choice, because it pleased him to do so, and, judging from the expressions in his will, he considered himself as under obligations to them for long continued acts of kindness and attention. If he chose to relieve the family of the burden of these payments he had a perfect right to do so, and none could question his pleasure in that regard. The payments are as consistent with that theory as with the theory that they were made in the exercise of ownership. Moreover there was evidence that he had in his possession considerable money belonging to Mrs. Glass for some of which he had given her his note. The life insurance money which she received on the death of her husband was placed with him. The stubs of his check books show that he owed her money for which he paid her interest and also other sums from time to time. It is impossible to say whether he used any of -her money in paying taxes, insurance and other expenses, but it is also impossible to say he did not.

The check books were clearly admissible in evidence, and there is no merit in the first assignment. We cannot possibly see whj’- it was not competent to show who paid the house expenses at Lin wood and therefore dismiss the second assignment. The omission of Mr. Cummings to speak of Linwood when he was discussing with his old friend, John Baird, the details of his will, was a slight circumstance indicating that he did not consider it his, and hence was admissible, to the jury, and we dismiss the third assignment. The same is true of the declaration of Cummings to Baird of his intention to destroy useless papers. Certainly if he had never delivered the deed to Glass, and never intended to do so, it was a useless paper only calculated to breed litigation, and he would naturally have destroyed it, and therefore the fourth assignment is dismissed. We see no reason to reject the declaration of Mr. Cummings to his niece Mary Cummings. It showed his kindly regard for Mrs. Glass and her family and his intention to help and assist them in any way he could and would easily explain such facts as voluntary payments on their account. We therefore dismiss the fifth assignment. The fact testified to by William H. Priest was an act of ownership by A. F. Glass and was therefore admissible and we dismiss the sixth assignment. The seventh and eighth assignments are rejected, because the placing of the furniture of Mr. and Mrs. Glass in the house at Linwood was an act consistent with a claim of ownership by them, and the .furnishing of the money of Mrs. Glass to Mr. Cummings by way of loan was a competent fact as we have said before. It is not so clear that the bonds mentioned in the ninth assignment were competent, but as the money relations, between Mr. and Mrs. Glass on the one hand and Mr. Cummings on the other, had become involved in the case, we cannot say it was clear error to receive them. The testimony was of the most trivial character and we certainly would not reverse even if its admission was erroneous. Of course the deed from Cummings to Glass was competent evidence and we reject the tenth assignment.

The remaining assignments are to the charge of the court and the answers to points. We have carefully examined them all and we do not consider there is error in any of them. The court was particularly careful in stating the law in regard to .the various modes in which delivery might be made, and, we think, was entirely correct in what was said as to all of them. It was not said by the court that the deed might have been delivered after Mr. Cummings’s death, but- that proposition was denied. We attach but little consequence as to what was said in regard to other modes of delivery than directly to Mr. Glass, because in our judgment the facts indicate that the deed was delivered to him, and the evidence is entirely sufficient to sustain that theory. We do not think the thirteenth assignment is material. The idea the court meant to convey was, “ that the great question will be was the deed delivered during the lifetime of Mr. Glass,” as is indicated by the testimony of Miss Ubil, and in that sense the remark was entirely correct. The jury could not have been misled because their question to the court shows that they understood that the deed was in the hands of Miss Ubil during the life of Mrs. Buehler, and they wished to know whether that could be considered as a delivery to the Glass family. The court said in reply it was evidence of delivery to the family and if unexplained it would be sufficient, but that the whole evidence was for them, and added, “If there is any other evidence in the case that would tend to explain that delivery you may consider it.” The court did not say, and the jury certainly did not understand, that Miss Ubil had testified that Mr. Cummings had actually delivered the deed to Mr. Glass. The want of accuracy in the language of the court did no harm and we would not reverse for such a cause.

Judgment affirmed.