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ROE v. ROE (03/20/62)

March 20, 1962

ROE
v.
ROE, APPELLANT.



Appeal, No. 25, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, June T., 1960, No. 2012, in case of Mildred Roe v. Margaret Roe. Judgment affirmed.

COUNSEL

George W. Thompson, with him Baile, Thompson & Shea, for appellant.

George T. McConchie, with him Hodge, Hodge & Cramp, and Hamilton and Darmopray, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: O'brien

[ 407 Pa. Page 126]

OPINION BY MR. JUSTICE O'BRIEN

Mildred Roe, the appellee, commenced an action in ejectment against her mother-in-law, Margaret Roe, the appellant. Appellee claimed title under a recorded deed from appellant to appellee and her deceased husband,

[ 407 Pa. Page 127]

    as tenants by the entireties. Appellant, in her answer, denied having conveyed the premises in question to her son and daughter-in-law but did not plead fraud or forgery as an affirmative defense by way of new matter.

At the trial, appellee introduced into evidence her deed from appellant, its recording having been admitted in the answer, and rested. Appellant testified in her own behalf in an attempt to show that the deed was a forgery or had been obtained by fraud. The trial court directed a verdict for appellee and appellant moved for a new trial which was refused. It is from the refusal of the motion for new trial that this appeal is prosecuted.

Appellant contends that the trial court erred in taking the case from the jury. We disagree. The introduction of the executed and delivered deed, complete on its face, shifted to appellant the burden of proving the deed the result of fraud, accident or mistake. Cragin's Estate, 274 Pa. 1, 117 Atl. 445 (1922). The able opinion of the court below sums up appellant's evidence as follows: "It would seem evident from the record that there was no fraud of forgery involved because the recipient of the deed was the defendant's son and she specifically testified that Thomas was a good son to her ..., he gave her money and assisted her in many ways and she would not say one derogatory thing about Thomas generally or with specific reference to the obtaining of this deed. That there is no forgery alleged or shown here is amply borne out by the record where the witness, not once but several times, when questioned as to her signature, would say only that she did not remember signing the deed but that the signature appeared to be hers. As a matter of fact, at one point she said it was her signature ... but what she was saying was she did not write it on a deed. If it is her signature and this is a deed, she cannot be heard to say

[ 407 Pa. Page 128]

    she did not write it on a deed. Therefore, lacking both allegation of fraud and forgery, and the record lacking any proof of such, these two ...


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