Cover & Wife v. Manaway , 115 Pa. 338 ( 1887 )

Mr. Justice Clark

delivered the opinion of the court February 21st, 1887.

The return of the fieri facias on the John Collins judgment, the sale of the land in controversy under it, and the sheriff’s deed to Collins do not appear to have been read in evidence; whether this resulted from mere inadvertence, we cannot say, but the sale of the land on that writ, and the execution of the deed would seem to have been assumed on both sides. The deed from John Collins and wife to Louise Cover, dated 20th November 1887, was admitted in evidence wdthout objection, and in the recitals of that deed, the premises conveyed are designated as “ part of the same premises which said Collins purchased at sheriff’s sale, as the property of the aforesaid Jacob Staup, as set forth in a deed from Calvin Springer, high sheriff of said county, dated March 22, 1877, recorded in the Court of Common Pleas of said county, in sheriff’s deed docket, No. 2, page 23.” At no stage of the trial, does any question seem to have been made as to the title of Collins, oías to the effect of the sale on his judgment.

But whether the land was sold on the Collins’ judgment or not, the question is still upon the deed of 5th November, 1872, from George Cover to Louise Staup, who afterwards became Cover’s wife. If, on the one hand, we exclude the Collins title altogether, it is plain that the defendants must rely wholly upon their deed of 5th November 1872, and if, on the other hand, we assume the sale and conveyance by the sheriff to Collins, it does not appear, outside of that deed, that on the 20th November 1877, when Collins conveyed to Cover’s wife, her estate entered into the purchase, or indeed that she had any estate whatever, which she could have applied to it. By the express terms of the contract of 17th January 1877, between Collins and Cover, “the amount of money found due George W. Cover, upon settlement of all claims between Jacob Staup and George W. Cover, and paid to Jacob Staup, and for him, by the said George W. Cover,” was to determine and actually did determine, the measure of Mrs. Cover’s interest in the land, and the entire consideration would thus appear to have proceeded from him.

But if George W. Cover, on the 5th November 1872, when he was not indebted, nor anticipating any indebtedness, and before his marriage with Louise Staup, conveyed the premises to her, under the terms and conditions of the deed of that date,; and the money, which was subsequently paid by Cover to Collins, was the proceeds of the timber taken from land under tbe, subsequent agreement with her, Cov.er might well stipulate with Collins in 1877 for a conveyance of the land to her, in confirmation of the title which he had previously made.

.The Collins judgment was the first lien; it was entered before the conveyance of the land by Jacob Staup to George W. Cover, and by Cover to Louise Staup; it was revived, and the lien continued against the terre tenant, and the sale upon that judgment certainly extinguished the title of all the .parties named. The judgment of William H. Playford, Esq’r, entered. 25th June 1873, was discharged by the sale, but as it was revived by scire facias in 1878, it became a lien upon whatever interest Cover acquired under the deed from Collins to his wife; and in order to explain the title of his wife, to trace the consideration, and to establish the lona fides of Cover’s purchase from Collins, for the benefit of his wife, the deed of 5th November 1872 becomes the necessary subject of investigation.

Whether the court was right or wrong, therefore, in assuming the validity of the Collins title is, we think, a matter of little consequence, as the same questions are presented in either event. Besides, the execution of the Collins deed was not seriously denied at the argument, and it seems to us that a reversal of the judgment on that ground would be of little avail.

The plaintiff in ejectment must recover on the strength of his own title, but if the sheriff’s sale and deed to Collins should be wholly excluded, and the deed of 5th November 1872 be shown to be a mere artifice and a fraud, as alleged, then the lien of .Manaway’s judgment, at the time of its entry, attached to Cover’s title, acquired under the deed of 22d October, 1872, and the sale upon bis judgment vested that title in him.

The deed of 5th November 1872 was admissible in evidence, we think, without explanation of the alleged erasure; but as it was afterwards received and read without objection, the ruling of the court did the defendants no harm, and they cannot complain. The deed was duly executed; it was attested by and properly acknowledged before John Markley, Esq’r, a justice of the peace, on the same day of its date, and the date of the acknowledgment is admittedly in the proper handwriting of the. officer. This deed was followed by an article ■of. agreement bearing date, 5th December 1872, between S. B. Staup and his sister Louise Staup, for a partition of the tract •between them, and another agreement of the same date between Louise Staup and George W. Cover,'for the sale of the timber, by the former to the latter, on that part of the tract .acquired by her in severalty by the partition ; the due execution of the said agreements having been attested by the oath .of the subscribing witnesses thereto.

When a deed is found in the hands of a grantee, having on its face the evidence of its regular execution, it will be presumed to have been made on the day of its date; and this presumption is greatly strengthened, if it is accompanied by an acknowledgment of the same date, in proper form, before a proper officer. The officer taking such an acknowledgment must certify the same, with the day and year when it was made, and by whom (Myers v. Boyd, 96 Penn., 427); and he will be presumed to have performed ids duty, and will not be supposed, without proof, to have taken the acknowledgment before the deed was executed. The acknowledgment of a deed is a judicial act, and the certificate of it, in the absence of fraud, is conclusive as to the facts therein stated: Heeter v. Glasgow, 79 Penn., 83; Williams v. Baker, 71 Penn., 476.

But parol evidence may be introduced to show that a fraud was practiced, not only in the execution of the deed, but in the obtaining of the acknowledgment: Heeter v. Glasgow, supra; Williams v. Baker, supra. Fraud however is not to be presumed without proof, nor upon proof which is slight; it must be established upon satisfactory evidence; it must be sufficiently explicit in its character to fairly rebut the presumption, which the law raises, as to the due execution of the deed, and the acknowledgment.

The plaintiffs, in rebuttal, attempted to show, that although the deed was dated, 5th November, 1872, it was in fact not executed for two or three years after that time, and the testimony of George Sargent, Milton Glover, and John Church is relied upon for that purpose. The testimony of Sargent is wholly unimportant, and ineffective for the purpose intended ; he was not present at the execution of the deed; lie was called upon by the parties to attest the signatures some time after its execution, in accordance with a suggestion of the justice, made at the time of the acknowledgment; he did not pretend to know anything as to the date of its original execution. The examination of Glover was of such a grossly leading character, and the facts elicited thereby so meagre and inconclusive, that his testimony as a whole is certainly entitled to but little if any respect. He admits that he heard part only of the conversation to which he testifies. He says, that Mrs. Staup and her daughter, some time about the year'1875, were discussing the date at which a deed was executed; that Mrs. Staup charged Louise and George with having been at Markley’s, to execute a deed, and with having dated it back three years, and Mrs. Cover answered, “No, we only dated it back two years.” He does not state what deed, when it was executed, or whether indeed it was executed at all. His statement as to what occurred is vague and unsatisfactory, and his recollection of the transaction is very indistinct. John Church testified that Mrs. Cover, about 1875, said to him, that she and Cover had been out at Markley’s, and that she had got the deed for the property; that “she would show the damned nigger if he would get the property.” He does not say when they had been at Markleys, whether at the time of the conversation or at some previous time, and we have no knowledge as to who was intended by the “damned nigger”; as Manaway had no claim upon Cover at that time, it is improbable that he could have been intended. In the absence of any evidence óf collusion or combination, the declarations of Cover were of course inadmissible to affect the title of his wife.

On a question of fraud great latitude is always allowed ; every fact or circumstance, from which a legal inference of fraud may be drawn, is admissible: Yerkes v. Wilson, 82 Penn., 9. Whilst the evidence of Sargent, Glover, and Church was perhaps admissible for what it was worth, it was not sufficient, we think, to justify a submission of the question of fraud to the jury. Since the scintilla .doctrine- has been exploded, both in England and in this country, there is a preliminary question, in all cases, for the court, not whether there is literally no evidence, “but whether there is any that ought reasonably to satisfy the jury, that the fact sought to be found is established; if there is evidence, from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted ; if not, it should be withdrawn from the jury ”: Hyatt v. Johnston, 91 Penna., 196. We think the evidence on the question of fraud was vague, meagre, and inconclusive, and was not such as could reasonably or fairly satisfy the jury that the deed in dispute was ante-dated as alleged, or such as would justify an inference of that fact. The mere casual and loose declaration of Louise Cover, disconnected from the conversation in which it was made, uttered in the heat of a discussion, standing alone, and wholly unsupported, ought not to affect the date of a deed, duly executed, and on the day of its date acknowledged, before a proper officer, whose-certificate attesting his official act, in his own hand writing, is not only not impeached, but is sustained by his own oath, and the oath of all the parties present. There is no .evidence whatever to indicate that the officer was in collusion with the parties, or that he was in any way imposed upon in obtaining the acknowledgments; the whole testimony is distinctly and positively to the contrary.

The view which we have taken of this case, renders it unnecessary to consider the other errors assigned.

The judgment is reversed.