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GERLOCK v. GABEL. (03/14/55)

March 14, 1955

GERLOCK, APPELLANT,
v.
GABEL.



Appeal, No. 332, Jan. T., 1954, from decree of Court of Common Pleas of Cumberland County, March T., 1953, in Equity, No. 3, in case of Mary E. Gerlock v. Margaret M. Gabel. Decree affirmed.

COUNSEL

Sidney E. Friedman, with him Clinton R. Weidner, for appellant.

Robert L. Myers, Jr., with him Arthur B. Myers and Myers & Myers, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 380 Pa. Page 472]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Although a considerable amount of testimony was taken in this case some of the factual background unfortunately remains obscure.

Plaintiff, Mary E. Gerlock, and defendant, Margaret M. Gabel, are mother and daughter. Plaintiff and her husband owned properties numbers 630 and 632 Enola Road, West Fairview, Cumberland County, subject to a mortgage of $2,400 held by one Andrew J. Ryan. In 1920 Ryan foreclosed the mortgage after giving written instructions to his attorney, S.S. Rupp. Esq., to purchase the property at the execution sale and hold it in trust to sell and to account to Ryan for the proceeds. Accordingly Rupp purchased the property for the sum of some $200 and received a sheriff's deed in his name as trustee. In 1921 he sold 630 Enola Road to one Daniel E. Grubb for $1,819 but continued to hold number 632 under the Ryan trust. In 1923 Ryan, for some undisclosed reason, stating that he had received full satisfaction of the mortgage debt and interest, executed a power of attorney to the Recorder to mark the mortgage satisfied although apparently he had not in fact recovered the full amount of the debt and although the foreclosure sale had itself discharged the lien. Rupp died in 1945 and among his papers there was found a written statement by him that he held the property 632 Enola Road as trustee for the plaintiff to dispose of at her direction and request. The only plausible explanation of the obvious inconsistency between his trusteeship for Ryan and this acknowledgment of a trusteeship for plaintiff is that Ryan was apparently willing to let plaintiff, who had at all times

[ 380 Pa. Page 473]

    occupied the property, continue to live there and be the equitable owner thereof, subject only to payment of the unpaid balance of the mortgage indebtedness and, meanwhile, the interest thereon as it accrued from time to time. Plaintiff remained in the property and paid the interest periodically to Rupp, trustee, as it fell due.

When Mr. Rupp died plaintiff filed in the Court of Common Pleas of Cumberland County a petition which she signed and swore to and in which she stated that Rupp had held 632 Enola Road in trust for her and that she desired title thereto to be transferred for the sum of $1.00 to Margaret M. Gabel; therefore she asked the court to appoint a substituted trustee in Rupp's place for the sole purpose of transferring the title to Margaret M. Gabel. The court, in pursuance of her request, appointed William M. Young, Esq., as substituted trustee. On May 1, 1946, plaintiff and defendant met at the office of an attorney, and there, in pursuance of an oral agreement which they had previously entered into, the attorney delivered to defendant a deed executed by Young as trustee and which conveyed to her a fee simple title to the premises, while at the same time defendant delivered to the attorney her check in the sum of $1,223.10 - presumably representing the remaining unpaid balance of the mortgage and interest thereon - to the order of Andrew J. Ryan, who, in person, the day before, had again entered satisfaction of the mortgage. Ryan is now deceased. Upon the death of plaintiff's husband in 1952 plaintiff demanded of defendant the return of the property, offering to repay her the $1,223 which she had expended. Defendant refused the request, whereupon plaintiff instituted the present proceedings.

In the pleadings, and as the case was tried, there was presented only one issue, ...


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