Behm v. Molly

NO. 356 JANUARY TERM 1889. Opinion, Mr. Justice Sterrett: This action of ejectment was brought to recover possession of several parcels of land, designated Nos. 1, 2, and 3, which were sold and conveyed by the sheriff to Dr. Samuel Behm in 1858. Lot No. 1 was then sold subject to a mortgage, which was afterwards foreclosed, and under that proceeding it was again sold in June, 1862, and conveyed to Dr. Behm. In February, 1863, Dr. Behm died intestate, leaving to survive him a widow, Maria Behm, and four children, one son and three daughters, who are the beneficial plaintiffs in this action. Both parties claim under the defendants in the executions on which said sales were made. Starting with the common source of title, the plaintiffs made [626] out a prima facie case by giving in evidence tbe several judgments and executions on wbicb the different parcels were respectively sold, and the sheriff’s deeds therefor to their father, etc. To rebut the case thus presented by the plaintiffs, the defendant, Mrs. Molly, alleged and undertook to prove that the several purchases by her brother-in-law, Dr. Behm, at the sheriff’s sales in 1858 and 1862, were made with her funds and for her benefit. As to the purchases in 1858, the evidence was wholly insufficient to warrant any such finding; but, as to the re-purchase of lot No. 1, under the foreclosure proceedings in 1862, the evidence tended to show that the consideration money was furnished by Mrs. Molly, and the purchase made for her. It is unnecessary to refer in detail to the evidence bearing on that subject. It was quite sufficient to go to the jury, and it was fairly submitted to them, under well-guarded and adequate instructions. The defendant also gave in evidence a deed to herself for the several lots in controversy, dated October 18, 1868, and executed by Maria Behm, widow of Dr. Behm, Martha Behm and Elmina Behm, (both minors,) Benjamin Behm, L. G. Sherman and Caroline M. Sherman, late Caroline M. Behm, being all the children and heirs at law of said deceased, Dr. Behm. The deed was never acknowledged by the two minor daughters above named, and was not acknowledged by Mrs. Sherman until May 10, 1870. As to the two daughters who signed the deed before they attained their majority, the learned judge rightly held that they were not bound by the conveyance ; but, as to Benjamin Behm and his sister, Mrs. Sherman, who were of full age when they executed the deed, he held that they were bound thereby, and hence neither of them could recover. In that ■ he was clearly right. There was no evidence either introduced or offered that would have justified any other conclusion. The practical result of the several rulings above referred to was to leave nothing for the consideration of the jury except the alleged equitable title of Mrs. Molly to premises No. 1, resulting, as was claimed, from the fact that she furnished the purchase money that was paid therefor at the sheriff’s sale in 1862. The evidence bearing on that question was very fully and fairly presented and submitted to the jury, under proper [627] instructions as to the law applicable thereto. On that question they found for the defendant, and accordingly rendered a verdict in her favor for the land described in the writ, with the exception of the undivided one sixth part of premises Nos. 2 and 3, for which they found in favor of Martha Harding, formerly Martha Behm, and Elmina Yahn, formerly Elmina Behm, two of the plaintiffs. There was no error in admitting the evidence referred to in the first four specifications. It was all competent and relevant. In connection with other evidence in the case, it had a bearing on the question whether the purchase money paid at the sale in 1862 was not furnished by Mrs. Molly, the defendant. Standing alone, the letter of Dr. Behm, September 6, 1861, would be irrelevant; but, when considered in connection with other evidence in the case it was properly admitted. The offer covered by the fifth specification was rightly rejected. The proposed evidence was incompetent for the purpose for which it was offered. It had no legitimate tendency to invalidate the deed executed by the witness, Mrs. Sherman. The sixth to ninth specifications, complaining of portions of the general charge recited therein, are not sustained. The charge, as a whole, is a very full, clear, and adequate presentation of the case, and the law applicable thereto. The tenth to fourteenth specifications, inclusive, relate to the refusal of the learned judge to affirm the points therein recited. An examination of those points has satisfied us that they were correctly answered. The case was very carefully and ably tried, and there appears to be nothing in the record that requires a reversal of the judgment. Judgment affirmed. no. 95 july term, 1887. Opinion, Mr. Justice Sterrett : The rulings of the court below were quite as favorable to the plaintiff in error as she had any just reason to expect. The verdict was in her favor for all the land in controversy except the one undivided sixth of premises Nos. 2 and 3, as to which the jury found in favor of Mrs. Harding and Mrs. Yahn, two of the plaintiffs below. The only ground of defence that was urged against their claim to that undivided interest in those [628] premises, was that plaintiff in error furnished the money that was used to pay for the property in question at the sheriff’s sale in 1858 ; but the evidence was wholly insufficient to warrant the jury in finding that the property was purchased for her, or that she furnished the money to pay for the same, and the learned judge rightly instructed them to that effect. In that he was clearly right. On the other hand, the plaintiffs below had a prima facie legal title, evidenced by the sheriff’s deed to their father, Dr. Behm. In addition to that, the evidence was clear and convincing that the property purchased at that sale by Dr. Behm was paid for by himself, and with his own funds. It is true that plaintiff in error gave in evidence a deed to herself, from the children and heirs at law of Dr. Behm, for the land in controversy; but, at the time that deed was executed, Mrs. Harding and Mrs. Yahn, two of the heirs, were minors, and therefore not bound by the conveyance. 1 It is unnecessary to notice the several specifications of error in detail. There is no merit in either of them. The case was well and ably tried, and we fail to find anything in the record that would justify a reversal of the judgment. Judgment affirmed.