Bergdoll v. Pitts

Opinion by Porter, J., The court below held the affidavit of defense to be insufficient as to a part of the claim of the plaintiff, and for such part entered judgment against the defendant. The opinion of Judge Audenried, which appears in the report of this case, fully vindicates the conclusion at which he arrived, and renders it unnecessary for us to refer to all the details of the allegations of defense. [262] The affidavit of defense does not deny that, at the time the taxes in question were assessed and became a charge upon the land, the title as registered and recorded showed the defendant to be the owner of an absolute estate in fee simple in the said land; it is not denied that the taxes were properly assessed, nor that the plaintiff, after he had purchased the property at a sale by the sheriff under proceedings upon his mortgage, was compelled to pay the taxes, in order to save the property.- These facts established a prima facie right in the plaintiff to be reimbursed by the defendant for the payment so made; Theobald v. Sylvester, 27 Pa. Superior Ct. 362; Frank v. McCrossin, 33 Pa. Superior Ct. 93. The affidavit of defense admits that the title to the property was placed in the name of the defendant on October 28, 1902, “by deed from Thomas F. Farris, as set forth in the plaintiff’s statement of claim.” The defendant, it is true, attempts-to nullify the admission, which the record compelled her to make, by coupling it with the averment, “that at that time and at all times thereafter until the said properties were sold at sheriff’s sale, the said properties were owned and controlled by Robert A. Pitts, and that this defendant had no interest in the same.” The affidavit contains no averment that there was any defect in the title which had been conveyed to the defendant, nor that the defendant had been ousted from the property by any superior title, nor that the defendant had conveyed to any other person the title which had been vested in her. The affidavit admits that the title had been conveyed to her by a deed duly registered and recorded, and from the facts thus admitted to be true the presumption that the defendant owned the property arises. The attempt to set up a defense amounts to nothing more than an assertion that although the title to the property was in.the. defendant, the real owner was Robert A. Pitts. Under the facts averred in the statement and in the affidavit of defense admitted to be true, the assertion that the real owner of the property was Robert A. Pitts, amounted to nothing more than a conclusion of law. If there was a defect in the title under which defendant held it was incumbent upon her to aver that defect.in her affida [263] yit; if she was a mere trustee for Robert A. Pitts, it was incumbent upon her to state in her affidavit the terms of the trust and how the trust arose, or if upon the same day that she received her deed she had executed a .conveyance of the property to Robert A. Pitts, which remained unrecorded, it was incumbent upon her to aver that fact: Neilson v. Equitable Trust Co., 18 Pa. Superior Ct. 635. The learned counsel for the appellant argues in his brief that the assertion of the affidavit of defense that the real owner of the property was Robert A. Pitts was sufficient to establish a trusteeship; that it was the equivalent of asserting that the defendant held the title as a trustee for Robert A. Pitts. Had the affidavit in terms averred that the defendant was a mere trustee, that averment would have been insufficient, unless she had set forth in the affidavit how the trust estate was created, the nature of her duties as trustee, and the facts necessary to enable the court to determine upon whom the law imposed the duty to pay the taxes: Landreth v. McCaffrey (No. 2), 17 Pa. Superior Ct. 276. The affidavit of defense was vague, evasive and insufficient. The judgment is affirmed and the appeal dismissed. Henderson and Morrison, JJ., dissent.