Appeal, No. 171, April T., 1958, from decree of Court of Common Pleas of Allegheny County, July T., 1957, No. 825, in case of Eula McClaney v. Andrew J. Scott. Decree reversed.
Allen N. Brunwasser, for appellant.
Hyman Borovetz, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).
[ 188 Pa. Super. Page 330]
This is an appeal from the decree of the Court of Common Pleas of Allegheny County dismissing a complaint brought by Eula McClaney, the appellant, to quiet title on property purchased from Andrew J. Scott, the named appellee, for whose estate the Potter Bank and Trust Company, now Fidelity Trust Company, was named guardian by the Orphans' Court of Allegheny County under the Incompetent's Act of 1955, as amended.
The property was purchased on March 1, 1955, for the sum of Four Thousand ($4000) Dollars and the appellant gave a purchase money mortgage to the appellee on that date in the amount of Two Thousand Three Hundred forty-three Dollars and fifty ($2343.50) Cents, payable with interest at six per cent. Scott was adjudged an incompetent and the bank named guardian of his estate on February 29, 1957. In early April of 1957, he was released from the Mayview State Hospital where he had been a patient for six months.
The guardian bank shortly after its appointment made demand of the appellant for payment of the mortgage and on April 24, 1957, this complaint was brought by the appellant to quiet title in that, the purchase money mortgage had been paid in full.
At the hearing both the appellant and Scott testified that the mortgage was paid in full. The appellant offered documentary evidence in the form of receipts
[ 188 Pa. Super. Page 331]
signed by Scott, who admitted their validity, to show payments on account of the mortgage in the amount of One Thousand one hundred twenty-five ($1125) Dollars. These payments were dated from April 7, 1955 until November 15, 1956, all prior to the action adjudging incompetency. The appellant further offered documentary proof in the form of agreements for the rental of an apartment and a garage to Scott. These agreements were acknowledged by Scott, who corroborated the appellant, by testifying that he occupied the apartment and used the garage under the written agreements. Both the apartment and the garage are a part of the mortgaged property. Both parties testified that he lived in this apartment from the time of the sale to date and that during his stay in the hospital his furniture and personal property remained in the property. The agreements provided for rental of the apartment at $50 per month; and for the garage, a rental of $7 a month.
They both testified that the rental for the apartment was$50 a month from March 6, 1955, until June 1, 1957, at which time it was reduced to $40 per month. The garage was used by Scott from March 1, 1955, to January 1, 1957, at the rental of $7 per month or a total of $154. The court found that the uncontradicted testimony of the witnesses, supported by the documentary proof, disclosed payment and credits in the sum of Two ...