Obney v. Obney , 26 Pa. Super. 116 ( 1904 )

Opinion by

Henderson, J.,

It is unnecessary to restate the facts and’ conclusions of law. They are clearly presented in the. opinion of the learned trial judge and sustain the plaintiff’s bill. The only controverted questions of fact related to the state of the health of Nancy Obney and the alleged untruthful representations made by the defendant, Santford Obney, to the plaintiff with reference thereto at the time the assignment of the mortgages was obtained. We have examined the evidence with care and are of the opinion that it supports the findings of the court. It is not seriously denied that during the month of May, 1899, Nancy Obney was very ill. The fact is established by the uncontradicted evidence of the attending physician.

The plaintiff’s evidence of the representations made as to the state of health of Nancy Obney clearly outweighs the denial made by Santford Obney. The plaintiff was old and had been ill for a long time and was weak in body and mind. The consideration paid for the assignment was grossly inadequate. In the light of the evidence the conclusion of the court is not open to criticism. If the case seemed doubtful to us, however, on the printed evidence it would not be our duty to reverse the decree. It was said in Com. ex rel. v. Stevens et al., 178 Pa. 543, that: “ The findings of the court under the new equity rules are like the findings of a master under the old practice. They will not be set aside on appeal if they appear to have been authorized by the evidence. An apparent preponderance of testimony in support of the appellants’ contention is not sufficient to condemn them, because in the finding of facts from evidence the credibility of the witnesses is an important factor, and of this the court below had better opportunity to judge than is given to us on appeal. In considering a specification of error which calls in question a finding of' fact by the court, we must not lose sight of the familiar principle or rule applicable to the report of a master or to the verdict of a jury.” And in Hancock v. Melloy, 187 Pa. 371, the court said: “We will not review these findings (of fact) except to ascertain whether there was any evidence to warrant them; we will not nicely weigh testimony to determine which side preponderates, nor carefully compare the statements of contradictory witnesses and pass on their credibility. Under the new equity rules this was for the court below.”

The facts being established by the finding of the court the decree follows as a logical conclusion of law. It was not necessary for the plaintiff -to show that Santford Obney knew that Nancy Obney was ill at the time the assignment was obtained. A positive declaration by Mm that she was hale and hearty and likely to outlive them all, when he was ignorant of her actual state of health, would subject him to the same legal consequences as if he knew that she was ill.

Nor was it necessary for the complainant to show that a relation of trust existed between him and Santford Obney. The existence of such a relation would shift to the defendants the burden of showing that the transaction was conscionable and fair. But the plaintiff’s complaint is that the assignment Avas procured for an inadequate consideration by false and fraudulent representations as to the health of Nancy Obney and that having been found to be true the assignment obtained by that means is void and the contract should be set aside.

The suggestion of laches cannot avail the defendants. Taking into consideration the age and physical debility of the plaintiff, his remoteness from the residence of the defendant and the fact that he did not learn of the physical condition of Nancy Obney until after her death are a sufficient explanation of the delay in instituting proceedings.

The appeal is dismissed and jihe decree affirmed at the cost of the appellants.