Kegerreis v. Lutz

Opinion by

Mr. Chief Justice Sterrett,

In this action of ejectment the plaintiff assumed the burden of proving title to the property in controversy by setting up a resulting trust arising from the payment of the purchase money with her own funds. On the other hand, the defendant claimed under a sale and conveyance by the assignees for the benefit of creditors of the plaintiff’s husband, at which sale notice was given by plaintiff of her claim as equitable owner.

As to the homestead tract, known as “No. 1,” the learned trial judge gave binding instructions in favor of the defendant; but, as to the others, he submitted the question to the jury with instructions which plaintiff alleges are erroneous. The specifications also charge error in some of the learned judge’s rulings on questions of evidence.

The evidence relating to “ No. 1 ” may be briefly summarized thus : In 1865, Henry Kegerreis, Sr., father of plaintiffs husband, died seized, inter alia, of said tract, and, under proceedings in partition, the same was sold and conveyed by said decedent's administrators, of whom plaintiff’s husband was one, to Maria Kegerreis, the mother of plaintiff’s husband. In their deed, dated April 5, 1866, said administrators recite that they exposed the premises to sale “ and sold the same to the said Maria Kegerreis .... for $1,825, she being the highest bidder and that the best price bidden for the same, which sale was duly confirmed,” etc.

From the time of her husband’s decease in 1865, until she died in 1886, Maria Kegerreis continued to occupy the premises as her own; and by her will, dated March 14, 1885, she devised the same to her son, plaintiff’s husband, at the valuation of $1,825, including the dower charged thereon. Her executors, of whom plaintiff’s husband was one, charged themselves with this sum as purchase money, less the dower, viz : $1,216.67. On April 5, 1866, Maria Kegerreis gave her son Henry a note for $1,221.78, which doubtless represented the money consideration of the tract, in the sale under the partition proceedings, with the addition of a small sum for costs. In their account, her executors claimed a credit for this promissory iiote with one year’s interest.

Against all this documentary evidence, containing declarations of plaintiff’s husband establishing title in Maria Kegerreis, the plaintiff offered her own and her husband’s testimony that the property was paid for with her own money. But there are other facts bearing upon the action of the court in withdrawing the case from the jury as to tract “No. 1.” Plaintiff derived her individual property from her father’s estate, the total of which, consisting of realty, aggregated $5,997.92. This was subject to a dower charge of $1,999.80; which was not paid until the death of the widow in 1873. This reduced the amount distributable in 1865 to $3,998.62. Plaintiff accepted one of the purparts of the realty at $257. In determining the amount of her share receivable in cash in 1865, it is necessary to deduct this last mentioned sum from the one fourth of $3,998.62, which was her share therein, and we thus have $742.85, as the correct amount to which she was then entitled. Part of this sum at least would be required in the purchase of one or more of the properties claimed by her. The homestead property was nonproductive. The profit on the sale of the purpart accepted by her in Iter father’s estate was not realized until 1871. Making the most favorable allowance for this further reduction, and we have a sum that is less than one half of the amount required to purchase tract “No. 1.” The argument that she borrowed a sum necessary to make np the deficiency is not supported by the evidence. She only claimed to have borrowed $800 ; and thus the sum necessary to make the purchase is only partially accounted for. This illustrates the general character of her own and her husband’s testimony. There was also testimony by both of them to the effect that they treated the amount received from the wife’s estate as a subsisting debt. In view of the inconclusive and unsatisfactory character of the oral testimony on the one hand, and the conclusive nature of the documentary evidence on the other, we think the learned trial judge was fully warranted in holding that the evidence on which the plaintiff relied was not sufficiently clear and satisfactory to justify its submission to the jury. In such a case, sitting as a chancellor, it was his duty to withhold it from their consideration and direct them, as to tract “No. 1,” to find for the defendant: Gilchrist v. Brown, 165 Pa. 275, and cases there cited.

it is unnecessary to consider the evidence as to the remaining tracts, for the reason that it was submitted to the jury with adequate and substantially correct instructions, and has been passed upon by them. Considered as a whole, the charge of the learned trial judge is unobjectionable. He very properly said that if the husband was regarded as his wife’s debtor for all sums received from her, it would necessarily defeat her claim to a resulting trust in the land.

In the tidal of cases such as this some latitude must he allowed and discretion exercised by the trial judge in the admission of evidence and in the examination and cross-examination of witnesses. We are not convinced that the plaintiff in this case was unduly prejudiced by tbe action of the court in either of these respects. We find nothing in tbe record, as presented to ns, that requires a reversal of the judgment.

Judgment affirmed.