Nichols v. Nichols

19 A. 422, 133 Pa. 438, 1890 Pa. LEXIS 919

• Court: Pennsylvania Court of Common Pleas, Lackawanna County
• Decided: March 24, 1890
• Docket: No. 27
• Status: Published

Opinion

Opinion,

Mr. Justice Green :

It is entirely undisputed that under the will of her father, William Clark, Mrs. Sarah Nichols took an undivided one third interest in the 98 acre tract which is in controversy in this case. There was other real estate, and there was personal estate, in fact, all of the testator’s personal estate, given, along with the 98 acre tract, to Mrs. Nichols, to her brother, George W. Clark, and her sister, Esther Griffin, in equal shares. These three were therefore tenants in common of all the property devised and bequeathed to them by the residuary clause of the will. The will was dated July 29, 1845, and proved November-6, 1845. There was no proof of any formal written partition of the property thus held in common. There was an abundance of proof that the 98 acre tract was occupied by Hiram Nichols and his wife from the time of William Clark’s death, in 1845, during the whole of their lives; and there was proof that George W. Clark, and Mrs. Griffin and her husband, took the other land, and the personal estate between them. There was also much proof, by the verbal statements and declarations of the parties, that the three tenants in common had, in point of fact, made a parol partition of the real and personal estate given to them by their father’s will. As a part of that proof, it was testified that Mrs. Nichols took the 98 acre tract for her share, and that Mrs. Griffin took another tract of land near the Nichols farm as a part or the whole of her share. There were no partition deeds executed between the parties showing precisely what was allotted to each; there is a lack of certainty, therefore, as to what precise portions of the testator’s property were taken by each in full of the shares of each, but it is proved beyond all question that there was a partition, and that it was made by parol.

The parties to this action are the five children of Mrs. Nichols and her husband. James, the plaintiff, seeks to recover the undivided one fifth of the 98 acre tract, upon the theory that the whole of the tract was the property of his mother, who died intestate. The defendants are the other children of Mrs. Nichols, and they claim the exclusive ownership of two undivided third parts of the tract under the will of their father. They allege that he was the owner of these two undivided third parts of the tract, by virtue of a deed made to him in 1846 by George W. Clark, and Mrs. Esther Griffin and her husband. Such a deed was given in evidence, not conveying, specifically, two undivided third parts of the tract, but the whole of it. But, as it recites that the tract came to the grantors and Mrs. Nichols as a part of their father’s estate, and the whole of their interest in the tract was only two thirds, of course the deed was operative only to that extent. The remaining one third belonged to Mrs. Nichols, and was unaffected by the deed; and that is the reason why the plaintiff is, in any event, entitled to one fifth of one third, or one fifteenth of the tract. But he claims that this deed was only given in the course of the partition of the real and personal estate of his grandfather, which was held in common by his mother, and her sister and brother, and that, as her interest in the joint estate furnished the only real consideration for the conveyance, she was the equitable owner of the title, and her husband simply held the two thirds of the property as her trustee. The deed was dated April 3, 1846, and was acknowledged the same day before N. Reynolds, justice of peace; and it recited a consideration of SI,000, for which the usual receipt was written and signed at the end of the deed.

On the trial, the plaintiff, in support of this theory of the ease, offered in evidence two deeds; one of which was from Dr. Hiram Nichols and Sarah, his wife, and George W. Clark and Ellen G., his wife, to Elias Griffin, for a tract of 27 acres, 87 perches, and another small piece, of about one half acre, being part of the estate of William Clark, deceased, which was bequeathed by his will to Mrs. Griffin, Mrs. Nichols, and George W. Clark, to show a division by deed of the land devised to the three children of William Clark, and that the consideration of the deed was the mutual conveyances. This deed was also dated April 3, 1846. The consideration recited and receipted for was $1,000, and it was acknowledged on the same day and before the same justice, N. Reynolds, as are mentioned in the deed from George W. Clark, and Mrs. Griffin and her husband, to Hiram Nichols. The plaintiff proposed to follow the offer of this deed by evidence showing that the 27 acre tract was of considerable value, and that on the same day Elias Griffin and wife conveyed by deed to George W. Clark a tract of 44 acres; that all three of the deeds bore the same date, and were acknowledged before the same justice; and that Dr. Hiram Nichols in his lifetime stated that this land in dispute belonged to his wife, and that, in making sales of land, he stated to the vendees it was her land, and sold it as such. This offer of proof was rejected. The other deed was then offered by itself, with a similar offer of proof to follow; and then it was offered in connection with the deed from Nichols and wife and George W. Clark to Elias Griffin, to be followed by proof that Elias Griffin, George W. Clark, and Sarah A. Nichols stated in the presence of witnesses that Mrs. Nichols took the 98 acres in suit, and that Elias Griffin took the portion mentioned in the deed to him, and that Mrs. Nichols always claimed title to the 98 acres, and that such claim was acknowledged by her husband in conversations with witnesses to be called. This offer of proof was also rejected; and in the rejection of both of these offers, we think, there was error.

The learned court seemed to think that, because a consideration of $1,000 was mentioned in the deed from Clark and wife and Griffin and wife to Nichols, a presumption of such strength arose that the money, and that alone, constituted the only consideration of the conveyance to Nichols, that all of the proof offered could not be heard, and was entirely inadmissible to prove any other consideration. But it is perfectly well settled law that receipts, whether contained in deeds or elsewhere, are not conclusive of the payment of money, but only prima facie proof, and always open to explanation. Thus, an acknowledgment of the purchase money in the body of a deed, and a receipt indorsed, are not conclusive evidence of such payment: Hamilton v. McGuire, 3 S. & R. 355. A receipt for the purchase money indorsed on a deed is only prima facie evidence, and may be rebutted by evidence: Weigley v. Weir, 7 S. & R. 309. See, also, Strawbridge v. Cartledge, 7 W. & S. 394; Watson v. Blaine, 12 S. & R. 131; Hoffman v. Strohecker, 9 W. 183; Byers v. Mullen, 9 W. 266.

Now, if the rejected offers of testimony had a tendency to prove that the real consideration of the deed to Nichols from George W. Clark and Griffin and wife was the interest of Mrs. Nichols in the laud, and the deeds from her and. her husband and Clark to Griffin, and from Griffin and wife to Clark, then, undoubtedly, the offers should have been received. To our minds, this rejected testimony not only had such a tendency, but was highly persuasive of the truth of the plaintiff’s theory. There was not a particle of proof in the ease of the actual payment of any money by any of the parties to the deeds. The sums named in each were precisely the same, and it would certainly be an extraordinary coincidence that all three of the properties in question had exactly the same value. There was no proof, outside of the deeds themselves, that there were •any negotiations for the actual purchase by any of the grantees, from any of the grantors, of any of the property conveyed by any of the deeds. Then the deeds were all executed on the same day, and acknowledged before the same justice on the same day they were executed. It is almost, if not quite, impossible to believe that these three conveyances were entirely independent transactions, having no relation to the division of the joint estate, and that they were mere ordinary deeds to perfect sales for money which was actually paid in each instance. The deed from Dr. Nichols and wife and George W. Clark and wife to Elias Griffin certainly conveyed the whole of Mrs. Nichols’ and George W. Clark’s interests in the 27 acres which was described in the deed as being a part of their father’s land which had been devised to the three in equal shares. There is no proof, except that which arises by presumption from the recital in the deed, that any money was paid for this conveyance. Mrs. Nichois was certainly divested of her interest in this part of her land by force of that deed, and on the same day her sister, Mrs. Griffin, divested herself of her interest in the 98 acres by conveying it to Mrs. Nichols’ husband. In the absence of proof that any money was actually paid, the inference is exceedingly strong that each conveyance was the consideration of the other. But, in addition to all this, the plaintiff offered to give in evidence the declarations of Dr. Nichols that the land belonged to his wife, and came from her father’s estate, and that Sarah Nichois always claimed title to the 98 acres, and that her claim was acknowledged by her husband to witnesses to be called; but it was all rejected. There had been considerable evidence already given of declarations by the parties that the 98 acres were taken by Mrs. Nichols as her share in the division; and these, together with the further declarations which were offered and rejected, would add much force to the effect to be given to the rejected deeds. The whole combined, all the deeds and all the declarations, •might well convince a jury of the correctness of the plaintiff’s theory, and that the deeds were really given in execution of the partition agreed upon by the parties.

We are clearly of opinion that all the testimony rejected was proper evidence for the consideration of the jury in determining the question of partition. The learned judge of the court below, in his charge, in his answers to points, and in the rejection of the deeds and declarations, held that it was necessary for the plaintiff to prove by independent testimony an actual partition made prior to the date of the deeds, before •they could be admitted in evidence, and that no proof of a subsequent partition could be received, because, after the deed to Dr. Nichols by George W. Clark .and Mrs. Griffin and her husband, the land was not held in common, and there was nothing ■to divide. But this view entirely overlooks the plaintiff’s contention that the several deeds were themselves a necessary part of the partition, and were made for the very purpose of effecting it. If that were true, as a matter of course, they ' should have been admitted, and given to the jury, as material evidence upon the very question of partition. There was no good objection to the admission of the declarations. They were made by those under whom the defendants claim title. Tliey relate to tbe character of tbe transaction at the time it occurred, and, whether made contemporaneously or subsequently, they tend to throw light upon that very subject. It is not like the case of an attempt to acquire title to real estate by loose declarations, as against the express terms of a deed, but rather as explanatory of the character of deeds actually made and not at all questioned, which might or might not have been made for a particular purpose, according to the intent of the parties. When the declarations of the parties themselves are received, if they, together with the deeds, should convince the jury that the deeds were all given in execution of a scheme of partition, they might well find that such was the fact, without impairing the effect of the deeds as conveyances of the several titles. We sustain all the assignments of error.

Judgment reversed, and new venire awarded.