Argued May 24, 1934. The facts in connection with this appeal present a rather startling situation. Jane C. Harrison, a niece of the late Senator Simon Cameron, for many years a senator from Pennsylvania and secretary of war under President Lincoln, lived in Lewisburg, Pennsylvania. She was possessed of considerable property which included land formerly used as a brickyard and three other pieces of real estate, known respectively as "The Harrison Block," "The Mansion," and "The Cameron House." She died in 1932, well advanced in age, and by her will disposed of her property, including this real estate, to the Presbyterian Hospital of Philadelphia as residuary legatee.
Three days after her death, Oscar R. Hartel, a former son-in-law, whose wife had died in 1907, filed with the recorder of deeds two deeds from Mrs. Harrison to himself. *Page 539 The first was dated 1909, and the second, 1924. They conveyed to him in fee this real estate mentioned above. The executors and residuary legatee, evidently feeling that there was something irregular about the deeds, brought a bill to remove a cloud on the title, apparently transferred by the will to them, by cancelling the deeds, and also praying for other appropriate relief. The court below dismissed the bill; the hospital and executors appeal.
The validity of these transfers hinges upon the delivery and possession of these deeds. There is no dispute as to their execution.
The court below was largely influenced by what we said in Cragin's Est., 274 Pa. 1. It is undoubtedly correct that when a deed is acknowledged before a proper officer as being signed, sealed and delivered, and the manual possession of the grantee is established, a presumption arises that an absolute and unconditional delivery is intended, unless by act, expression or writing an indication is made of an intention to qualify the formal act. We said quite recently that there could be no delivery in escrow to a grantee: Eaton v. New York Life Ins. Co., 315 Pa. 68. If the facts contained in this record were controlled by the principles laid down in Cragin's Est., supra, we would not depart therefrom in the slightest particular, but they are not.
We said in Cragin's Estate that a proper acknowledgment, with the physical possession of the deed by the grantee, did not conclusively establish an intention to deliver; that the prima facie case, or the presumption arising from recording, or signing, sealing and acknowledging a deed as delivered, accompanied by manual possession by the grantee, is not irrebutable. Such presumption can be overcome by evidence that no delivery was in fact intended and none was made. That conclusion was based on our prior authorities: Devall v. Glover, 250 Pa. 417. In Cable v. Cable, 146 Pa. 451, we said that while manual possession of a properly executed *Page 540 and acknowledged deed, "in the absence of suspiciouscircumstances," constitutes "prima facie evidence of delivery," it is, when unaccompanied by direct testimony of a delivery and when surrounded by circumstances raising impressive inferences contrary to every attribute of a conveyance of the property, insufficient to establish an effective delivery: Stewart v. Stewart, 50 Wis. 445, 7 N.W. 369. See Greenleaf on Evidence, volume 2, section 297. Long possession by the grantor, and acts evidencing ownership meanwhile, without recognition of another's rights or of a claim of ownership by a grantee, are sufficient to repel the presumption of delivery arising from a deed alone: Knolls v. Barnhart, 71 N.Y. 474, 478.
Before discussing the testimony of the sole and only witness to the act of delivery, we will state some facts in connection with all this land that occurred in testator's lifetime which were utterly inconsistent with any conveyances of the property. The first deed was executed and left unrecorded for 23 years and the second for 8 years before Mrs. Harrison's death. It was proved that the first deed was in the possession of Mrs. Harrison and in her vault 15 years after its execution. While no mention is made of the whereabouts of the second deed, Hartel was supposed to have taken it with him to Boston. During all these years, so far as the record is concerned, this property was in the name of Mrs. Harrison, as owner. Throughout all this time and until her death she exercised sole and absolute control over all the properties. She rented them and collected the rents; she made repairs to the properties and deducted the cost of these repairs in preparing her income tax returns. She also deducted depreciation on account of the properties, an inconceivable act if she did not own them. She paid the taxes until the time of her death. When the State of Pennsylvania constructed a highway through one of the properties, she claimed the damages from the county and settled therefor with the commissioners, executing a release, in effect a transfer, dated March 13, 1931, wherein *Page 541 she stated that she was the owner of the property. This release was recorded in the proper office. Hartel owned property close by, which this same highway traversed. He made no claim for any damages to the Harrison land, but did claim damages for his own and executed a similar release which was recorded in the same place where Mrs. Harrison's release was recorded. Mrs. Harrison accounted to the federal government in her tax return for the rents and revenues from these properties. Long after the execution of the first deed, she directed that all the buildings of the brickyard property be torn down, sold and removed from the premises at a price determined by herself. No part of this money was ever turned over to or claimed by Hartel. Mrs. Harrison placed signs on the brickyard property advertising it for sale, and had, up to a short time before her death, a similar sign on the Cameron House property in the town. She took out insurance thereon in her own name. In her will she treated these properties as though she owned them. By her fourth codicil, dated in 1930, 6 years after the second deed, she directed that two old, family servants be permitted to occupy a house, located on the Cameron property, "so long as both or either of them may live." Her will, executed in 1928, provided: "It is my will that he [Oscar R. Hartel] shall have and take no interest whatsoever in my estate or any part thereof, and that he shall receive nothing from me or my estate."* *Page 542
We are confronted with this situation: The two deeds in the manual possession of Hartel. The 1909 deed was still in the possession of Mrs. Harrison in 1924. The usual presumption attendant on the words "signed, sealed, acknowledged and delivered" loses much, if not all, of its force where the grantor holds possession of the deeds for a long period of time. Following the language of Justice MITCHELL in Cable v. Cable, supra, the circumstances related above attendant upon the acts and conduct of the parties since the execution and delivery of both deeds, were sufficient in and of themselves to overcome any presumption arising from manual possession.
No witness saw the 1909 deed delivered. We are relegated then to the testimony of a single witness to sustain the fact of delivery of the 1924 deed and the manual possession of both deeds. This witness is a brother-in-law of appellee. He lives in Sunbury, some distance from Lewisburg. He says that in September, 1924, he drove to Lewisburg to get Hartel and they stopped by Mrs. Harrison's house. Hartel went into the house, came back, got into the automobile, and on the return to Sunbury from Lewisburg told him that he had obtained the 1909 deed. Whether Hartel saw Mrs. Harrison that day, or whether she gave him the deed, does not appear. No explanation is given as to how he came to get possession of it; he just had it. There is no evidence that Mrs. Harrison was in the house while Hartel was there. This deed was held by him 8 years before it was recorded [23 years after execution]. As stated, he never asserted any ownership over the property. Mrs. Harrison dismantled and sold the building and equipment, erected a large "For Sale" sign on the land, gave her name as the owner, and the county took from her, as owner, a part of the land.
As to the second or 1924 deed, the same witness says he drew it up. When asked where he got his information with which to prepare the deeds, he stated that it was *Page 543 from the record. "I went there and looked it up. I think I looked at the old William Cameron deed for the purpose of getting my description. Q. You copied it out of the old William Cameron deed, the same as it was? A. Yes, . . . . . . Q. And found a description fitting this? A. Yes sir, . . . . . ."
It was proved conclusively that there was no deed, conveyance, or other record that showed any such description as that contained in the deed from Mrs. Harrison to Hartel covering the "Mansion House," the "Cameron House" or the "Harrison Block." The contradictions are so plain, obvious and material between the Hartel deed and the record, that we must conclude that the witness must have been mistaken in his recollection. Not one of the three descriptions contained in this deed to Hartel could possibly have been taken from the record. There is no such record, and there was no such record when this deed was prepared.
This witness also contradicted himself when he mentioned the place where the instructions were given to him by Mrs. Harrison. In his cross-examination, instead of frankly disclosing all the facts regarding the matter, he was apparently reluctant and hesitant, setting up objections which only persons of his training could possess. In his testimony he said he represented Mrs. Harrison in connection with the making of the deed of 1924. When he was asked: "You were acting to have it deeded to your brother-in-law?" he replied, "I never look a gift-horse in the mouth." "Q. And neither you nor Hartel were looking at a gift-horse that day? A. No, sir. Q. Did you think it was a gift-horse? A. Yes, sir. Q. How did you know it? A. He didn't pay any money for it." He didn't advise his brother-in-law to have his deeds recorded. He knew perfectly well what it meant if they were not recorded. Mrs. Harrison could sell the property to another, convey, mortgage, or otherwise dispose of it. *Page 544
It is clear to our mind that the delivery of the deeds cannot be sustained by the testimony of this witness. Appellee had another living witness, the notary who took the acknowledgment, whom he could have called to show delivery. Why she was not called is not disclosed by the record.
The situation is somewhat analagous to Leahey v. Leahey,309 Pa. 347. In that case the grantee testified that the deed was delivered to him by his mother, the grantor, in her dining room. He afterwards handed it back to her for delivery to another grantee named in the deed. It was found in that case that the grantor, after the date of the deed, had exercised full and complete ownership over the property, had sold part of it, paid the taxes, insurance, leased the premises and collected the rent. In that case the witness who testified as to delivery was not credited, and the manual possession of the deed did not outweigh the circumstance opposed to the delivery. In the present case, Mrs. Harrison exercised full dominion over the properties until she died; offered one of them for sale by a sign placed on it by her, naming herself as owner; by her will she disposed of part of the property; while she lived, she improved and repaired it, claimed depreciation of it in her income tax return, paid the taxes, leased the property and collected the rents. These acts are incompatible with a grant of the properties by her to Hartel.
Under the circumstances we are compelled to reverse the decree of the court below, direct the reinstatement of the bill and the entering of a decree in accordance with the prayer thereof; costs to be paid by appellee.
* In Duvall v. Glover, 250 Pa. 417, a deed dated March, 1884, was unrecorded. Another deed, without consideration, was executed and recorded in 1892. The grantor in the deeds died in 1909. The evidence against the presumption of the delivery of the deed to the grantee plaintiff in 1884, which was in his possession, were certain acts with reference to the conduct of the grantor in the first deed subsequent to delivery. In an action of ejectment the finding of the jury against the delivery of the deed to the first grantee was sustained in an opinion by this court.