Shaw v. Newingham , 287 Pa. 304 ( 1926 )

This is an action of ejectment brought against Harriet M. Newingham to recover certain property which the husband had conveyed to her. The land in question was acquired by him in 1912, but it is claimed merely as trustee for his wife and another, each the owner of an undivided one-half. On August 2, 1919, he transferred the title, and three years later she secured by purchase the interest of the tenant-in-common, agreeing to pay therefor $5,000, of which sum $2,000 was given in cash, the balance being still due. Since that time she has received all of the rents. Plaintiffs recovered judgment in 1924 against the husband (Shaw v. Newingham, 279 Pa. 180), caused the realty in dispute to be seized on execution, and became the purchasers at sheriff's sale. To enforce their rights, this proceeding was instituted.

Defendant, in the abstract of title filed, claimed ownership by virtue of the deed of 1919, and the agreement of 1922 with Dr. Leech, the holder of the one-half. She asserted the original, as well as the later, purchase was made from her separate estate, and that F. M. Newingham at no time was the real owner. It was, therefore, insisted no interest was secured by the execution creditors by reason of the foreclosure. At the trial, plaintiffs offered the deed to Newingham, and the one from the sheriff to them, making out a prima facie case, the common source of title being admitted. A nonsuit was refused, and the defendant then undertook to show that she had furnished, with Dr. Leech, in 1912, the funds for the purchase price, and that Newingham held title only as trustee for the two tenants-in-common, the interest of the latter having been acquired by her, so that she was possessed of the entire fee when the execution was issued. A verdict for plaintiffs was rendered, and this appeal of defendant from judgment thereon questions the correctness of certain rulings of the court, as well as its charge to the jury.

The principal complaint, raised by several of the assignments of error, is directed to the question of the burden of proof. It was not necessary for plaintiffs to anticipate the defense (Drumgoole v. Lyle, 30 Pa. Super. 463), and the issue was limited to that set forth in the pleadings, under section 2 of the Act of 1901 (May 8, P. L. 142): Lutes v. Randall, 267 Pa. 285. There was no suggestion that the transfer to the wife in 1919 was a voluntary gift. Had this been shown its validity would be sustained, in the absence of proof of existing creditors, that the transfer was made in contemplation of the incurring of indebtedness, or that the grantor was about to engage in some hazardous business (Buckwalter Stove Co. v. Edmonds, 283 Pa. 236; Gassner v. Gassner, 280 Pa. 313), though such a conveyance for a nominal consideration would be presumptively fraudulent against those holding claims against the husband at the time: American Trust Co. v. Kaufman, 276 Pa. 35.

No claim of a gift was made in the abstract filed, but the affirmative defense of payment from the separate estate of the wife was undertaken. If this could have been proved, she would be protected as against the creditors of the husband (Bollinger v. Gallagher, 170 Pa. 84), but the burden was upon her to establish the fact (Jack v. Kintz, 177 Pa. 571) by clear and satisfactory evidence: Taylor v. Paul, 6 Pa. Super. 496; Fritchey Lumber Co. v. Milling Co., 19 Pa. Super. 321. In the absence of a showing that the conveyance was a voluntary gift, or paid for from the individual assets of the wife, it will be presumed to have been made in the interest of the husband, and will be subject to the claims of his creditors: Hunter v. Baxter, 210 Pa. 72. The instructions of the learned court below as to the burden of proof followed the well established rules, and in so advising no error was committed.

Admission of certain testimony of defendant and her husband is also complained of. Both were called as witnesses, and denied certain conversations which tended to show the conveyance of 1919 attacked was not made in good faith, and that, notwithstanding it, the title remained in the husband. The principle is invoked that declarations made by the husband in the presence of the wife, and not contradicted, are inadmissible to affect her rights, since, under such circumstances, no estoppel is worked to her prejudice by the fact of her silence: Paul v. Kunz, 188 Pa. 504. Here, the statements were made by both, who jointly participated in the conversations objected to, and were admissible: Henry, Tr. Evidence, section 81; Miller v. Baker, 160 Pa. 172. It was not an effort to have the husband impeach the wife's title, but to affect the credibility of the witnesses, both of whom had denied the occurrence concerning which inquiry was made: Bank of Pittsburgh v. Purcell, 286 Pa. 114. It is further to be noticed, there was no exception taken to the admission testified to by Blumenstein, nor to one of those recounted by Shaw. As to the other, the offer was opposed, because reference was made in the statement to a claim against Newingham by one Curry in an independent transaction. The allusion was merely incidental, and in explanation of the reason for holding the conversation, a fact denied by the witnesses. The evidence was properly received to affect the credibility of both husband and wife.

The court charged the jury that it could consider the fact that defendant had entered a judgment against her husband, and claimed payment of it from the proceeds of the sheriff's sale caused to be had by the plaintiffs here. Distribution was awarded to her, and the money given to her attorney. During the trial, held months later, the amount allowed was paid into court on the theory that an error had been made in accepting it. The evidence would not justify the assumption that the receipt by her counsel of the sum was the result of mistake, and the jury was entitled to consider the facts as showing the adoption by Mrs. Newingham of an entirely inconsistent position, when she now insists the title to the land was in her individually and not in her husband: Omwake v. Harbaugh,148 Pa. 278.

Again, it is urged that Dr. Leech, one of the joint plaintiffs, and, according to the abstract of title, formerly a tenant-in-common of the undivided one-half interest, had such rights in the property as would prevent a judgment in ejectment. Clearly, the right to recover such title as Mrs. Newingham had, no matter what its extent, existed, if defendant failed to sustain her claim of purchase from her separate estate. She asserted the title to all of it, and cannot now defeat the claim to possession on the ground that she was not the owner of the land, as claimed in her pleadings. Leech did not assert on the trial any claim to the original undivided interest, but insisted that he had transferred his rights to the husband, and not to the defendant. He now sets up ownership with his joint plaintiffs by virtue of the deed from the sheriff.

Without referring further, or specifically, to the numerous assignments of error, all are overruled.

The judgment is affirmed.