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JONES v. STEINBERG (ET AL. (07/21/55)

July 21, 1955

JONES
v.
STEINBERG (ET AL., APPELLANT).



Appeal, No. 118, Oct. T., 1955, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1953, No. 8279, in case of G. Franklin Jones, Harriet E. Anderson and Sue Wetzel v. Morris Steinberg et al., Trustees of Samuel Levick B. & L. Association. Decree affirmed.

COUNSEL

D. Arthur Magaziner, with him Richard A. Sprague and Sterling, Magaziner, Stern & Levy, for appellant.

Thomas W. Maher, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Wright

[ 178 Pa. Super. Page 519]

OPINION BY WRIGHT, J.

Plaintiffs instituted an action to quiet title, alleging that a certain mortgage lien should be satisfied of record because of the presumption of payment which arises from nonpayment of principal or interest for twenty years. After a hearing without a jury, the trial Judge found for plaintiffs. Exceptions were dismissed by the Court en banc, with one Judge noting a dissent.*fn1 A final decree was later entered, and this appeal followed.

The record discloses that, on June 18, 1925, Mame H. Jones and her husband, John L. Jones, executed and delivered a bond and mortgage to the I. Rich Building and Loan Association covering premises situate at 155 North Dewey Street in the City of Philadelphia. As a result of a merger, the I. Rich Association subsequently became known as the Samuel Levick Building and Loan Association, which liquidated on June 2, 1930. Appellant and two others (now deceased) were appointed as liquidating trustees. Appellees averred in their complaint that no payment had been made on account of principal or interest of the said mortgage "for upwards of 21 years after the 7th day of July, 1932". Admitting this averment, appellant alleged in his answer "that about ten years ago and again about five years ago, the said John L. Jones admitted and acknowledged the indebtedness... and promised and agreed to make payment thereof"; further, "that on or about July 2, 1948, the plaintiffs' attorney, Thomas W. Maher, by letter which he was authorized to write, acknowledged the indebtedness... and offered to pay the sum of $300.00 in satisfaction thereof".

[ 178 Pa. Super. Page 520]

At the trial, appellant called G. Franklin Jones, one of the appellees, on cross-examination. He testified that he was the son of the mortgagors and the brother of the other appellees; that Mrs. Jones died in November, 1947, and her husband died three weeks later. He produced the pass book showing that the last payment was made on July 7, 1932. He further testified that, several months after his father's death and in his capacity as executor of his father's estate, he inquired of appellant what could be done to have the matter cleared up so that the mortgage could be satisfied. Subsequently, the witness directed his attorney to write a letter making an offer of compromise "without prejudice". Appellant did not testify concerning any conversations with John L. Jones. He did testify, however, as to circumstances surrounding the original inquiry of G. Franklin Jones; also that, a year or more after the attorney's letter, G. Franklin Jones again inquired what was being done about the mortgage. Appellant's position is that, under all the evidence, the lower Court "should have found that the presumption of payment was rebutted".

As stated in Corn v. Wilson, 365 Pa. 355, 75 A.2d 530: "There is a long established presumption that a mortgage, as well as all evidences of debt excepted out of the Statute of Limitations, unclaimed and unrecognized for 20 years, has been paid... This presumption of payment after a lapse of 20 years is a strong one and is favored in law as tending to the repose of society, the protection of the debtor, and the discouragement of stale claims... The presumption of payment may be rebutted only by clear, satisfactory and convincing evidence beyond that furnished by the specialty itself, that the debt has not been paid, or by proof of circumstances tending to negative the likelihood of payment and sufficiently accounting for the delay of

[ 178 Pa. Super. Page 521]

    the creditor... Moreover, whether the facts and evidence relied upon to rebut the presumption of payment are true is a question of fact for the jury; but whether, if true, they are sufficient to rebut the presumption, is a question of law for the court". See also Haughey v. Dillon, 379 Pa. 1, 108 A.2d 69. When a case is tried without a jury the credibility of witnesses and the weight to be accorded their testimony is for the trial Judge, and his general finding has the force and effect of a jury's verdict: Robinson Electrical Co. v. Capitol Trucking Corp., 168 Pa. ...


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