Lewars v. Weaver

Opinion, Mr. Justice Green : It was error in the learned court below to strike out the testimony of Wm. L. Eyerly. He was examined by the de — 285 — fendants and cross-examined by the plaintiff in relation to the declarations of the deceased, and no objection whatever was made to his testimony on either side. No application was made to strike out his testimony, and the court acted of its own motion entirely in doing so. The plaintiff may have had a very good reason for desiring this testimony to remain in the case, and undoubtedly had a right to have it considered. It was his privilege to have it rejected, when it was offered, but he did not claim his privilege, and without such claim the court had no right either to reject it when offered or strike it out afterward. The eighteenth assignment of error is therefore sustained. The evidence thus stricken out explained fully what was the consideration of the mortgage, to-wit: a debt due by Mrs. Weaver’s son to the mortgagee, to secure which the mortgage was given. As this was a perfectly legitimate transaction, and as the court below appears to have laid much stress upon the fact that there was no apparent consideration for the mortgage, and strongly intimates that without such consideration the mortgage was void, the importance of the rejected testimony becomes manifest. The comments of the court upon this subject covered by the thirteenth, fourteenth and fifteenth assignments are erroneous and those assignments are sustained. We think there was error also in holding that the scrivener who wrote the deed and took the acknowledgment was the agent of the mortgagee for those purposes. We cannot find any testimony to that effect. It is true there was evidence that the scrivener gave the mortgage to the mortgagee, but that fact was quite as consistent with his being the agent of the son of Mrs. Weaver as of the mortgagee. In point of fact it w'as Fayen Weaver, the defendant’s son, who procured the scrivener and brought him to his mother to have the mortgage executed, and who was present at, and participated in, the execution of it. As it was given to secure his debt and thus was intended for his benefit, there is ample evidence to justify the inference that it was he who employed the scrivener and who stood in the relation of principal to the latter as agent. Clew-ell, the mortgagee, was not present at the execution of the mortgage, either in person or, so far as we can discover in the testimony, by any person as his representative. He was there — 286 — fore not responsible for any fraud or imposition practiced upon Mrs. Weaver, if any such there was, at the execution of the mortgage. The learned court below held there was such fraud in not informing Mrs. Weaver as to the character of the paper she was signing, and he visited the consequences of the fraud upon the mortgagee, by holding that the scrivener was the agent of the mortgagee, who was for that reason responsible for the fraud. As we do not accept the theory of such agency, the conclusions which are based upon it must fall. We therefore sustain the ninth assignment, and so much of the thirteenth and fourteenth assignments as relates to the supposed agency of the scrivener for the mortgagee, and the consequences of that agency as there stated. We do not sustain the fourth, fifth, tenth and eleventh assignments, because all the matters covered by them were part of the res gestee and therefore admissible, without any regard to the presence or absence of the mortgagee or his agent. Two matters of more importance remain to be considered. One is the legal sufficiency of the decision of the court. Several assignments of error present this subject. After a patient and careful study of the decision, we are constrained to say we think it is in serious and fatal conflict with our later eases and must therefore be set aside. There is no separate and distinct finding of facts, such as is required by our act of 1874 and held to be essential by a number of our rulings. The decision commences by stating the nature of the action, that it appears by the mortgage book the mortgage is there recorded, and it appears the mortgagor was the owner of the land described, and it appears by the recitals that the mortgage was given to secure payment of a bond for §500. The certificate of the acknowledgment before the notary is then copied and it is stated that with the admission as to the death of the mortgagee and grant of letters the plaintiff’s testimony was closed. The decision then proceeds to state that on the part of the defendant it was shown that the land was conveyed to Mrs. Weaver in 1867 and it was testified by Charles Weaver, defendant’s grandson, that he was present when the mortgage was signed and heard what passed at that time. So far, there is nothing in the decision which either is, or purports to be, a finding of any fact whatever. In the next sentence it is stated that “ it — 287 — is found that the facts were as follows.” Then follows a continuous narrative or statement, which commences by saying that on a certain day Lewis Yetter, a notary, was employed by Joseph Clewell to obtain a mortgage from Jacob Weaver and his wife, for $500, and that on the same day Yetter and Fayen Weaver went to Weaver’s house; that Weaver was not at home, Ms sou went for him, he came, they had the papers there, and adds what was said by some of the persons present, and then proceeds to give the testimony of Charles Weaver as to what was said and done. Without any finding of facts, the decision proceeds to say, that it is found that Yetter could not without an interpreter interrogate Mrs. Weaver as to her acknowledgment and that she could not read the acknowledgment. The decision then adds, that it appears that the husband was the interpreter and that all that was said and done was in the presence of the husband. It then states that a question was put on the trial as to what Jacob Weaver said to his wife about her signing the paper; that this was objected to, but the objection was overruled and exception taken, and the bill is signed and copied in the decision. It then states the reply of the witness to the question, and, without any finding, adds that “the testimony in full is hereto appended.” It then rejects the testimony of Eyerly, says that Mrs. Weaver was called as a witness but objected to and rejected, and closed so far as the facts are concerned. It is almost needless to say that this is not the report of a referee, nor the finding of a court as required by our acts of assembly. There is not only no distinct and independent finding of facts, but there are no findings of fact at all. It will not do to merely say in the report or decision that “the following are the facts found.” They must be actually and distinctly and separately found, and they must be the substantial and controlling facts of the case. It is not enough that the finding may be sufficient as to some one or more of the minor facts, if deficient as to the others. Nor will it be a compliance with the statute to mingle the facts with the conclusions of law. This also is done in the present case, and it produces still more confusion. Much of what is said in that part of the decision we cannot agree to, as already stated, but if we could, we would be bound to hold the decision fatally — 288 — defective in this regard. We said in Harris v. Hay, 111 Pa. 564 : “ It is not enough that by going carefully through the entire report we might be able to separate the referee’s findings from the testimony which he cites and the arguments which he adduces in support of his views. It is the business of the referee to separate them.” We have held, in all the cases, that the report or decision must contain a distinct and separate finding of facts, and also the conclusions of law: Marr v. Marr, 103 Pa. 463; Sweigard v. Wilson, 106 Pa. 207; Harris v. Hay, supra; Ellis v. Lane, 85 Pa. 265; Butterfield v. Lathrop, 71 Pa. 225; Foreman v. Hosler, 94 Pa. 418. And the facts must be found with at least as much fullness and certainty, as in a special verdict. These views require us to sustain the first, second, twelfth, and such portions of the thirteenth and fifteenth assignments of error as relate to this subject. The only remaining question is whether the testimony of the grandson of the defendant is sufficient to overcome the notary’s certificate of acknowledgment. At the time of the occurrence he was a child eight years of age. At the time of his examination he was sixteen years old, and an intervening period of eight years had elapsed. Admittedly under our own decisions, if Joseph Clewell had advanced money or parted with any property real or personal on the faith of this mortgage, the certificate of acknowledgment would have been conclusive : Heeter v. Glasgow, 79 Pa. 79, and cases there cited, Oppenheimer v. Wright, 106 Pa. 569; Singer Mfg. Co. v. Rook, 84 Pa. 442. It must be admitted here that the weight of the evidence is, that the consideration moving from Clewell had passed before this mortgage was given. The money had been previously loaned and Clewell had taken Fayen Weaver’s note or notes for the debt which the mortgage was to secure. Therefore, we are obliged to hold that as to Clewell the validitjof the acknowledgment might be impeached by parol testimony, and if that testimony were clear, satisfactory, indubitable, sufficient to move the mind of a chancellor to set aside a written instrument on the ground of fraud, it would be our duty to give it such effect, if the case were properly before us, and pronounce this mortgage invalid. But a most thorough and careful consideration of the testimoiry fails to convince us — 289 — that such is our duty. We attach little or uo consequence to that view of the testimony which relates to the question of fraud. We have seen that the mortgagee was not present, either in person or by his agent, at the execution of the instrument and is therefore not responsible for what was said or done by those who were present. He is to be regarded as a purchaser without notice and therefore not affected. If he gave up his notes against Fayen Weaver, in consideration of receiving the mortgage, he would be a purchaser for value and would be fully protected. The evidence does not disclose how this was, but the case is too uncertain in that respect to justify a court in overthrowing an acknowledgment of a mortgage, which is a judicial act: Heeter v. Glasgow, supra, upon such a ground and in the circumstances as here developed. Moreover, it is not at all certain that any fraud was practiced upon the defendant. She signed the mortgage in the presence of her husband, her son, and the notary, and without objection. It is not pretended that the husband and son were ignorant of the contents of the paper, and both the proof and the inferences are that they understood it perfectly. No one of all these persons, including the defendant, has testified, or was examined, to prove that any fraud or imposition was practiced. Only a grandson, who was then a mere child of eight years, testified as to what occurred, and that was after eight years had elapsed from the time the mortgage was executed. The allegation of fraud is based upon the assertion that Mrs. Weaver was deceived as to the character of the paper she signed. The grandson testifies that Tetter could not speak German and that his grandmother could not speak or understand English, and that what was said to her was said by her husband. He gives somewhat different accounts of what was said. Thus, at first, he said: “ They wanted her to sign it and she wanted to know wliat it was and they told her it wasn’t anything to hurt anything at all; she shouldn’t be troubled about it, that it wouldn’t be of any account.” On cross-examination he said, being asked to give the very words his grandfather used: “ I couldn’t tell you just how he spoke. Mr. Tetter sat down and wrote on that paper and told my grandfather that that there other paper what Fenen (Fayen ?) Weaver had was lost and now he should sign this ; and my — 290 — grandfather wanted to know what for a paper and they told him and then he signed it, and then Lewis Yetter told my grandmother to sign it and she couldn’t understand him and he told my grandfather to tell it, and he told her that they was making a new paper, that that there other paper got lost and she should sign it; she wanted to know whether it would make her any trouble and they said no, and she sat down and signed it for him.” This statement is substantially repeated later on with a little more particularity as to the reason for giving the mortgage, thus: “ Q. Then after your grandfather told your grandmother that it was to take the place of that other paper that lrad been lost, your grandmother signed it? A. Yes, sir.” Again: “ Q. And Lewis Yetter then said through your father to her that it was to take the place of a paper that was lost? A. Yes, sir.” It appears by this citation of the testimony that it was explained to the defendant that the paper she was about to sign was given to take the place of a paper previously given by her son but which was lost. -As this was doubtless the fact, and there is nothing to impeach it, it is somewhat difficult to discover the fraud. She certainly knew she was assuming an obligation for her son and that is what the mortgage is. That the particular obligation she assumed included a pledge of her real estate, would be of more importance if she had refused to bind her land and had been told that this instrument would not have that effect, but it would be expecting rather too much of a child of eight years that he should understand the difference between a mortgage of land and a personal obligation for the payment of money, and hence we find no testimony on that subject, or showing that she was either expressly or impliedly deceived in relation to it. The assertion made by her husband that it would not make her trouble is the same that is always urged when a person is asked to become surety for another, and no doubt it was thoroughly believed by her husband when he made it. It does not appear therefore that the defendant was actually misinformed as to what the paper was, and it does appear that she did intend to assume an obligation for a debt or other obligation of her son, which of course she could lawfully do by way of mortgage. Inadequate as such testimony is, to make out an allegation — 291 — of fraud, the case is much more deficient when viewed in another aspect. The notary, an entirely disinterested person, has certified under his hand and upon his official seal that he did, in point of fact, examine the defendant privately and apart from her husband; that he made known the contents of the instrument to her and that she acknowledged that she signed, sealed and delivered the same as her voluntary deed, without fear, threats or compulsion of her husband, if this is true, it puts an end at once to the defendant’s case. Why is it not true? Only because one who was then a child of eight years says he was present all the time in the room when the parties were there, and that there was no time when his grandfather went out of the room. Yet the same witness having first testified that his father, his grandfather, his grandmother and Yetter were all at the house when he first came, and remained together till the instrument was executed, afterwards testified that these persons were not all there when he arrived but that his grandmother and Yetter were there together; that his grandfather was away at work and that his father went after him and brought him to the house and it was not until after that that the instrument was signed. He also testified that after he arrived, he went out to meet his father and grandfather, leaving Yetter and his grandmother together at the house. At the conclusion of his testimony, being again examined on this subject, he testified thus: “ Q. Then your grandfather, your father, your grandmother and Lewis Yetter were at the house all together before you came from school ? A. No, sir, my grandfather wasn’t at the house, not before I came there. I was there before he was at the house. Q. Your father and Lewis Yetter and your grandmother wore there together ? A. Yes, sir. Q. Your father can talk Dutch ? A. Yes, sir. Q. And you don’t know what happened there while you (they) were there together before you came ? A. No, sir.” It will thus be seen that there was ample opportunity when the boy was not present for the notary to do what he has solemnly certified he did do, and the whole force of the boy’s testimony is reduced to the merest negative, even if it could be depended upon for its accuracy and its verity. But it cannot be depended upon in either of these respects. Being asked with minuteness as to who signed the mortgage and, — 292 — amongst the rest, whether Ms father signed it, he said emphatically that he did not. But he was at once confronted with his father’s signature and then said he had not seen him sign it, although he had previously spoken with the greatest preciseness as to all the facts of the signing, naming the persons and describing the order of the signatures. There were other discrepancies in his testimony, as might have been expected .considering his age at the time of which he spoke, but it is not necessary to discuss or even to enumerate them. It is doubtless true that there are cases in which it is proper for courts and juries to defeat a formal certificate of acknowledgment, but this is not one of them. In any such case the evidence in contradiction of the facts set forth in the certificate, should be of the clearest and most satisfactory character; it should be above suspicion; it should of course be consistent with itself and free from contradictions, and it should be intrinsically probable. It should be so persuasive in its character that the judicial mind can rest upon it, with the conviction that the ends of justice will be subserved by giving it effect as the basis of a decree. In all of these respects we feel that the evidence in the present case is gravely deficient. It is scarcely possible to imagine that a child of eight years could receive impressions, positive, definite and fixed, of an event such as tins, in which he could have no interest and wlrich he certainly could not understand. The impressions of cMldhood as to matters of business detail are of the most fleeting, evanescent and imperfect character. Surely it would be dangerous to permit important muniments of title, regular, complete and in due form upon their face, to be swept away by that kind of testimony, when a mere momentary inattention or a slight lapse of memory may fully account for the supposed omission of a formal ceremony. Especially does this feeling prevail, when it is considered that the witness was the grandchild of the defendant, maintained, nourished, educated by her from his infancy, living with her always, and no doubt at all times the object of her constant affection and protecting care. WMle the case may be one of hardship for the defendant we cannot sacrifice the interests of justice to a mere sentiment of compassion. We feel it to be our duty to say that we cannot sustain the decision of the learned court below either in the conclusions of fact or — 293 — law which are expressed in the decision. We sustain the sixth, seventh, eighth, sixteenth, seventeenth, nineteenth and twenty-first assignments of error. We do not sustain the twentieth assignment, because the conclusion does not necessarily follow from the one premise stated in the point. Judgment reversed and procedendo awarded.