Duncansville Building & Loan Ass'n v. Ginter , 24 Pa. Super. 42 ( 1903 )

Opinion by

Morrison, J.,

This is an action of ejectment brought by the plaintiff against the defendants for certain real estate in the borough of Duncansville, Blair county. It resulted in verdict and judgment in favor of the plaintiff. Hence this appeal by the defendants.

The common source of title was agreed to be John Fitzharris, administrator of John Seibert, and the plaintiff putin evidence a deed from him to George M. Seibert, recorded in deed book 57, page 289 of the records in the recorder’s office of Blair county. This was followed by a deed from George M. Seibert to William P. Ginter, one of the defendants, dated July 1, 1885, and recorded in the proper office in Blair county on October 19, 1885. The plaintiff next put in evidence a mortgage to it from William P. Ginter, dated August 17, 1893, for $1,000, covering the premises in controversy. This mortgage was duly foreclosed to No. 64, March term, 1899, and tjje amount due thereon reduced to judgment, to wit: $1,288.31. Upon this judgment a writ of levari facias was issued, and the sheriff of said county duly sold the premises in dispute to the plaintiff, and executed and delivered to it a deed for the same.

The defense attempted to be made on the part of Isabella Ginter is that the deed of July 1, 1885, for the premises in question ought to have been made to hér, that she paid the consideration money and that the conveyance to William P. Ginter was by fraud or mistake, and therefore he holds the property as trustee for her. The learned judge admitted the evidence and submitted the question thus raised to the jury in a charge which we regard as entirely fair to Isabella Ginter. The jury was instructed that if she paid for the land out of her own money and had done nothing thereafter to estop her from setting up a title to the premises and if the jury found this in her favor and that the deed was in fact made to her husband by fraud or mistake, then the plaintiff could not recover. An examination of the testimony convinces ns that the case was well tiled and that a just and legal result was reached. We think the evidence was sufficient to warrant the jury in finding that the lot in question was not paid for by Isabella Ginter, but that her husband gave his judgment note for the full amount of the purchase money on the day that the deed was executed and delivered to him; that there was no mistake or fraud in the making of the deed to William P..Ginter, but on the contrary it was made and delivered in accordance with the agreement and understanding of all the parties interested. That Isabella Ginter receipted to the recorder of Blair county for this deed on March 15, 1886, and retained it in her possession for many years thereafter, and that she must have known during all these years that the deed was made to her husband; that on October 26, 1885, William P. Ginter, with the knowledge of his wife, borrowed from the Fidelity Building and Loan Association about $1,200 on the strength of his title evidenced by this deed; that from this money WilliamP. Ginter paid the purchase money note given on the day the deed was made to him; that Isabella Ginter paid' the dues to the said Building and Loan Association by money received from her husband and son from month to month until August 17, 1893, when judgment was liquidated in favor of said Building and Loan Association for the balance due on said loan; to wit: $440; that William P. Ginter then borrowed from the Duncansville Building and Loan Association $1,000 and gave the mortgage on said lot, which was put in evidence on the trial by the plaintiff. That Isabella Ginter knew of this loan and mortgage, and that it was based upon the title of her husband under the deed of July 1, 1885; that from July, 1885, down to the date of the bringing of this suit William P. Ginter and Isabella, his wife, were in possession of the premises in dispute, and their only claim of title was the deed of July 1, 1885.

After holding possession of the premises in dispute under the deed of July 1, 1885, for about sixteen years Isabella Ginter sets up ownership of the lot as a defense to this suit on the ground that the deed was made to her husband by fraud or mistake and that he holds the premises- as her trustee. At the trial her counsel objected strongly to the record of the deed of July 1, 1885, going in evidence because the grantor, George M. Seibert, acknowledged it before himself, he being a justice of the peace. The court admitted the record in evidence and subsequently permitted the plaintiff to put the original deed in evidence in rebuttal, and the admission of the record as well as the admission of the-deed is assigned for error. The testimony showing that the defendants had held possession of the premises for about seventeen years under this deed, and the defendant, William P. Ginter, had twice mortgaged the same with the knowledge of his wife, we are not surprised that the learned judge admitted the record of the deed in evidence, nor are we surprised when the counsel for Mrs. Ginter complained of this that he permitted the deed to be put in evidence as a part of tl;e plaintiff’s case in rebuttal. The order of the admission of evidence is in the discretion of the court and is not ground for error except for a clear abuse of such discretion, which appears to be unjust or illegal. When the learned counsel for the defendants objected so strenuously to the record going in evidence, and when it appeared that the defendants had the deed in court, which was executed and delivered to William P. Ginter on July 1, 1885, and there being sufficient evidence that Isabella Ginter knew of this deed, and that it was to her husband, during a period of about sixteen years, we think the learned court did not err in allowing the plaintiffs to put the original deed in evidence at any stage of the trial, and to have excluded this deed upon the facts as they appeared at the time it was offered would have been a travesty of justice. Let it be conceded that the acknowledgment of this deed by the grantor before himself was irregular, yet it was executed and delivered on the day of its date, and William P. Ginter caused it to be recorded, and Isabella Ginter receipted for it to the recorder and held possession of it for many years, and knew that her husband had twice mortgaged the premises on the strength of this deed, and it was the evidence of title under which the defendants were in possession, and we regard it eminently proper for the court to permit it to go in evidence.

In our opinion the verdict and judgment in favor of the plaintiff is justified, first, on the ground that William Ginter purchased the lot and gave his judgment note for the purchase money and that the conveyance was made to him without any mistake or fraud. Second, if tins is not so then the conduct of Mrs. Ginter during the sixteen years or more between the date of the deed and the bringing of this ejectment was such as to estop her, and she was not entitled to be heard in this case in her contention that William P. Ginter held the title in trust for her.

The assignments of error are all dismissed and the judgment is affirmed.