Latch v. West End Trust Co.

32 Pa. Super. 472, 1907 Pa. Super. LEXIS 36

• Court: Superior Court of Pennsylvania
• Decided: February 25, 1907
• Docket: Appeal, No. 151
• Status: Published

Opinion

Opinion bv

Henderson, J.,

The evidence makes it clear that as between Jones and the estate of Charles Latch the Mabel Davis mortgage belonged to the latter. Jones had been for about twenty-eight years the attorney of Latch, attending to all his business, and while so acting made many investments of money for his client; collected interest; reinvested loans and had in his possession papers belonging to his client. No one disputes his ownership of the Mabel Davis mortgage. ‘ The contestants here both claim through, him. It is proved that he collected on the Wilde mortgage $1,000 for Latch, and the memorandum on his assignment as trustee for Mabel Davis to Charles Latch, executed February 9, 1896, contains his written admission that this amount was the consideration for the assignment of the mortgage to Latch. Moreover, the assignment recites the receipt of $1,000 as the consideration therefor. The assignment with other papers belonging to the Latch estate were found among the papers of Jones after his death. The assignment of the mortgage to James J. Gillin and Silas Jones, executors and trustees under the will of Henry Bickley under which the appellant claims, was not made until February 20, 1903. Jones transacted the business with reference to this assignment. Gillin had no knowledge of the particular mortgage, but was told by Jones that he had a good mortgage and wanted the Bickley estate to get it. The assignment was found in Jones’ office in the Bickley safe after Jones’ death. The question whether the document under which the plaintiff claims is an assignment is not open to persuasive discussion. It has all the essential words of an assignment and is under seal. It is not contended by the appellee that the memorandum indorsed thereon transferred the mortgage, or that it is a declaration of trust. It is the history of the transaction, probably made by J ones to show the origin of the fund which was the consideration for the assignment. The paper under which the appellant claims is similar in form to that presented by the appellee, and is no more efficient than the other. It contained an acknowledgment and bore the name of a witness, but these did not make the document more available in transferring the title. The case turns, therefore, on the relation which Jones bore to the two transactions. In the first he transferred as owner to his client. In the second he transferred as trustee to himself and another acting as executors and trustees of the Bickley estate. His cotrustee committed the transaction of the business to him without direction or knowledge as to the particular investment to be made. J ones thus became the medium through which the Bickley assignment was acquired. It is true his knowledge was obtained before he became trustee for the Bickley estate, but it was nearly three years afterward that the assignment was made and in the meantime Jones had been paying to Latch interest on the money he had received from Wilde and which he had invested in the Davis mortgage; during all of which time, of course, he knew that his title to this mortgage had been transferred to Latch. When he undertook to take the mortgage for the Bickley estate he was confronted with the fact of the prior assignment. Whether he acted as principal or agent, therefore, in behalf of the Bickley estate the transaction is tainted with fraud because of this knowledge. As principal he, of course, had knowledge of title in another; as agent his principal was chargeable with notice of anything affecting the validity of the transaction coming to the knowledge of the agent while the proceeding was pending: Johnston v. Laflin, 103 U. S. 800; Columbian Bank’s Estate, 147 Pa. 422. It is argued that any fraud perpetrated was against the Latch estate, inasmuch as Jones did not report to Latch the payment made on the Wilde mortgage. But this omission did the Latch estate no harm. The wrong was done when Jones attempted to make a second sale of the mortgage. The omission of Jones to notify Latch that he had assigned to him the Mable Davis mortgage was unbusinesslike, but as he had other documents of Latch under his control there was no irregularity or impropriety in retaining the assignment in Ms possession with the other papers. There is no evidence that Latch knew the assignment was in Jones’ possession and no neglect is attributable to him. The assignment was not a secret document as suggested by the appellant. If it is to be so considered the Bickley assignment was in like condition, for the papers were both in Jones’ possession, and so far as appears in the case, their existence was not known to any other person than him up to the time of his death. The appellant can only claim through Jones. He was the active executor and trustee. Not a step can be taken without proving that he had authority to make the investment for the Bickley estate. He acted on his own judgment; exercised his own discretion; had the legal authority so to do and took the title in his own name and that of his cotrustee. It is a proposition not to be tolerated that in so doing he could give to the estate of which he was the legal representative a good title to property, the transfer of which would amount to a larceny as against the Latch estate. The evidence admitted was competent and the ease was well decided.

The judgment is affirmed.