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OAKS FIRE COMPANY v. HERBERT. (05/29/57)

May 29, 1957

OAKS FIRE COMPANY, APPELLANT,
v.
HERBERT.



Appeal, No. 62, Jan. T., 1957, from decree of Court of Common Pleas of Montgomery County, June T., 1953, No. 238, in case of Oaks Fire Company v. R. Sheldon Herbert et al. Decree affirmed.

COUNSEL

William L. Huganir, for appellant.

Desmond J. McTighe, with him Lawrence A. Brown and Duffy, McTighe & McElhone, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 389 Pa. Page 359]

OPINION BY MR. JUSTICE BELL

This is an appeal from a decree of the Equity Court of Montgomery County overruling plaintiff's exceptions to the Court's adjudication in an action to quiet title. Plaintiff owns a tract of ground in Montgomery County which was conveyed to it by the Commissioner of Montgomery County on June 1, 1953. The Commissioners of Montgomery County had received title on February 23, 1943 through two sales of the premises conducted on February 1, 1940 and December 8, 1941, for unpaid taxes.

On July 6, 1953, plaintiff brought this action to quiet title in order to have two mortgages given by Frank Macomb Gumbes in the principal amounts of $6500 and $9000, respectively, satisfied of record. Plaintiff named as defendants, inter alia, two heirs of the original mortgagor. One heir, Rebecca G. Whitemarsh, is the only child and daughter of Frank Macomb Gumbes; the second heir, R. Sheldon Herbert, is the granddaughter and only grandchild of Frank M. Gumbes. After issue was joined, a trial without a jury was held. The lower Court discharged the lien of the $6500 mortgage and the defendant filed no exception thereto, so that the $9000 mortgage alone is the subject of this appeal.

The sole legal issue raised in the case at bar is whether the evidence offered by defendants was sufficient to rebut the presumption of payment of the $9000 mortgage.

On June 8, 1903, Frank M. Gumbes executed a mortgage of $9000, payable in one year, to the Norristown Trust Company, secured on premises at Oaks, Montgomery County, Pennsylvania. The property was called "Broadview" by the mortgagor and his family. The mortgage was assigned successively to the following assignees: (a) To The Pennsylvania Company for

[ 389 Pa. Page 360]

Insurances on Lives and Granting Annuities, on July 30, 1929; (b) To Frank S. Coffin, also known as Franklin S. Kauffin, on January 24, 1942; (c) To Rebecca G. Whitemarsh, on March 8, 1945; (d) To Maxine C. Anderson, on July 27, 1948; and (e) To R. Sheldon Herbert, on April 22, 1950. The receipts, disbursements, records and files of The Pennsylvania Company pertaining to this $9000 mortgage were destroyed in accordance with the policy of that Company to maintain its files for a period of only 10 years. Moreover, the mortgagor, Frank Macomb Gumbes, died in 1945 and his wife, Rebecca M. Gumbes, died in 1946. Frank S. Coffin is also deceased.

The crucial factual issue revolves around two alleged receipts which referred to interest payments on the $9000 mortgage, Rebecca G. Whitemarsh, daughter of Mr. and Mrs. Frank Macomb Gumbes (the original mortgagor), was administratrix of the estate of Rebecca M. Gumbes. She testified that she found the receipts in question among the papers of Rebecca M. Gumbes. The trial Judge believed her and admitted the receipts into evidence over the ...


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