Burr v. Kase

Citations

• 168 Pa. 81
• 31 A. 954
• 1895 Pa. LEXIS 760

Syllabus

<p>Mortgage — Parol mortgage — Evidence—Lost paper.</p> <p>In order to convert a deed absolute on its face into a mortgage, or to create a parol secret trust as against such deed, the evidence must be clear, precise and indubitable.</p> <p>In an action of ejectment it appeared that defendant, who had been a judgment creditor of plaintiff, bought plaintiff’s real estate at a sheriff’s sale, entered into possession and continued to occupy it for a period of twelve years, and up to the time the suit was brought. Plaintiff claimed that defendant had agreed in writing, at the time of the sheriff’s sale, to reconvey the land to him when the debt should be paid, and that the writing was lost. He was permitted to testify to its contents. His evidence was that the writing contained an agreement on the part of defendant to reconvey the property when the debt was paid, but he could not give the specific terms of the agreement or the amount of the debt, nor could he remember that any provision was made for taxes, repairs or other expenditures. He did not pretend to remember the full contents of the paper. The alderman who, according to plaintiff’s testimony, had prepared the paper was called, but he testified that he had only a faint recollection of drawing some paper for the parties and he could not recall the contents. The defendant positively denied that he had ever executed any such paper. Evidence was offered and admitted however, that he had made declarations both before and after the sheriff’s sale that he only wanted his money out of the property and that he intended to return the property when he got sufficient money out of it to pay his debt. It appeared from the testimony that large sums of money were spent by defendant for improvements upon the land. The evidence showed that, about a year after the sheriff’s sale, the properly burned down and that defendant received enough of insurance money to pay his debt, and that plaintiff then made no claim upon him to reconvey