McGarry v. McGarry , 9 Pa. Super. 71 ( 1898 )

Opinion by

Rice, P. J.,

By his will probated in January, 1876, Patrick McGarry devised the house and lot in suit to his widow for life, and directed that after her death, the property should be sold and 1200 of the proceeds be paid to his daughter, Anna McGarry, the defendant, and the residue be divided equally among his four children. The widow died in August, 1881, and in the same year the plaintiff, James McGarry, and his two sisters, Bridget and Mary, signed and acknowledged a deed for the lot to their sister, the defendant. The latter had lived with, and taken care of, her mother after her father’s death, and after the death of her mother continued in the possession of the property. In August, 1893, James McGarry made an assignment for the benefit of his creditors to George B. Adelman, the other plaintiff. In May, 1895, the defendant presented her petition to the court of common pleas, setting forth the facts substantially as above stated, and alleging that the deed referred to, had been duly delivered to her in 1882, and at the request or suggestion of her brother James, had been returned to him, for safe-keeping. She prayed the court to award an issue between her and the plaintiffs, in accordance with the provisions of the Act of June 10, 1893, P. L. 415. The plaintiffs filed separate answers, in which they denied her title and right of exclusive possession, and alleged that the deed had never been delivered because she had failed to comply with the terms upon which the other heirs were to convey to her their interests in the land. The court awarded an issue, and the case came on to be tried as if it were an action of ejectment. The sole question submitted to the jury was, whether or ■ not the deed was delivered as alleged by the defendant. The jury decided this issue in her favor.

It seems to us almost too plain for argument, that the second section of the act of 1893 applies to such cases as the present. There is nothing in the language of the section to indicate that the legislature intended to confine the jurisdiction of the court to cases where the person out of possession claims merely an easement in the land. The language is most comprehensive, and includes all cases where the facts of the petitioner’s possession, and the adversary’s denial of his title, are established. “ /It common law, the adversary might lie by, concealed or quiet, and choose his own time for the contest, subject only to the risk that the statute of limitations might shut him out. The party in possession could do nothing but await the attack. Equity came to his aid, by bills to perpetuate testimony, to quiet title, etc., but tbis assistance1, was limited and not adequate. In tbis state tbe Act of May 21, 1881, P. L. 24, gave the party in possession, the further right, as against an adversary who had once asserted his claim in an ejectment, to rule him to bring his further action, or be barred. The act of 1893 is another step in the same direction. The party in possession is no longer bound to await the attack, but may act on the offensive, and bring on the battle at once. The proceeding under the act is by petition setting forth the facts of such claim, and right of possession, and the denial thereof, and if the court is satisfied, that the facts set forth are true, it shall award an issue, and the verdict thereon shall have the force and effect of a verdict in ejectment on an equitable title: ” Canal Co. v. Genet, 169 Pa. 343. Whatever may-be said of the constitutionality of the particular provision of the first section, we think it cannot be said that the subject of legislation in the second section is not clearly expressed in the title. The legislation is precisely what the title indicates, and although the particular provision of the first section should for any reason be held inoperative, it would not necessarily follow that the whole act must be stricken down. That which is left is complete in itself, capable of being executed, and not so interwoven with, and dependent on, the particular provision referred to as irresistibly to lead to the conclusion that if all could not be carried into effect, none of the provisions would have received legislar tive sanction. It is well settled in this state that in such cases, part of an act may be declared unconstitutional because of a defect in the title, and the rest be allowed to stand. The cases upon that subject will be found collected in Sanderson’s Validity of Statutes 14; 214. The third and fourth assignments of error are overruled.

Granting that the direction in the will of Patrick McGarry worked an equitable conversion of the land into personalty, the legal effect of the conveyance by three of the legatees to the fourth worked a reconversion by means of the election of all the other parties to take the land instead of the money. There was no evidence to repel the conclusion of law which resulted from this fact. Therefore, the court correctly refused the plaintiff’s fourth point, and the sixth assignment of error is overruled.

The plaintiff’s counsel candidly admits that Mr. Adelman the assignee is a mere volunteer and took only the rights and interests that James McGarryhadin the land at the time of the assignment; also that the creditors of James McGarry were not protected by the recording act of March 18, 1775, 1 Sm. L. 422: Ludwig v. Highley, 5 Pa. 132. He argues, however, that the recording of the deed of assignment gave them rights superior to those of the defendant, whose deed is unrecorded. He relies upon the Act of May 19, 1893, P. L. 108. We deem it unnecessary to enter into an extended discussion of this question. After a very thorough consideration of this act with the evident intention to lay down a rule which could not be misunderstood, the Supreme Court reached this conclusion: “ It results from this examination of the act of 1893, that it is effective to change the law as it stood before, in only one particular, viz, it reduces the time within which a purchaser must record his deed from six months to ninety days. In all other respects the law remains as it was before : ” Davey v. Ruffell, 162 Pa. 443. This construction of the law prevents the conclusion that the failure to record the deed to the defendant made it void as to the assignee for the benefit of creditors.

It is argued that the letter of the defendant’s counsel embraced in the first assignment of error contains expressions which are inconsistent with her present contention that the deed had been delivered. Let this be granted, for the sake of the argument, yet it is plain that these admissions could not be given in evidence against her, unless they were made by her express, or implied, authority. It would be an intolerable rule if it were to be held that the rights of clients could be divested by loose expressions of their attorneys made under the circumstances disclosed in the evidence in this case.

These circumstances were that the defendant consulted counsel with regard to her title and possession, and he being unable to understand clearly from her statement what the facts with regard to the deed were, and desiring to see it, wrote the letter in question. He had no authority either express or implied to admit away her title, or to bind her by a promise to give a note. The attorney testified that the letter was not written at her dietation, and there is no evidence that she knew what its contents were. The court committed no error in rejecting the offer; therefore the first and second assignments of error are overruled.

Judgment affirmed.