#### Conway’s Appeal. [Anderson *v.*Jones.]

The exercise of the discretion of the court in opening judgments will not be reversed in the supreme court where the court below refused to open a judgment on the ground of fraud in its procurement, the unsupported evidence of the petitioner being flatly contradicted in all its material averments.

Upon a rule to open a judgment entered upon a bond and warrant of attorney to confess judgment, the petitioner testified that the plaintiff in the judgment, who was an aunt and the executrix of a deceased aunt, asked her to sign some papers as a witness, which she undertook to do, but it appears now that they were the bond upon which this judgment was entered and a mortgage upon land devised by plaintiff’s testatrix to the petitioner, the consideration claimed being an alleged indebtedness due from testatrix to plaintiff, only part of which in fact was due, the purpose of the plaintiff being to deprive petitioner of the devise. The plaintiff denied all the material averments of the petitioner. The conveyancer testified that he explained the writings to the petitioner. The court refused to open the judgment and the decree was affirmed.

Feb. 5, 1889,

Appeal, No. 128, July T., 1888, of John E. Conway and wife, in right of the wife, from C. P. Montgomery Co., to review an order discharging a rule to open a judgment of Rebecca J. Anderson against-Louisa F. Jones, now Conway, at Dec. T., 1886, No. 233. Williams and McCollum, JJ., absent.

The judgment in this case was entered Feb 3, 1887, upon a bond and warrant of attorney for $3,474, dated Dec. 4, 1885, with interest at five per cent, payable half-yearly, accompanying a mortgage, in favor of Rebecca J. Anderson and against Louisa T. Jones, since intermarried with John E. Conway. A fi. fa. and vend. ex. issued upon the judgment. A sci. fa. had issued upon the mortgage in December, 1886.

On Feb. 12, 1887, Mrs. Conway presented her petition to the court, asking that the judgment be opened, and the petitioner let into a defence. It appears from the petition that Hannah Jones, aunt of the petitioner, died Dec. 25, 1882, leaving a will, in which she devised to her sister Elizabeth a life estate in a certain farm of about forty acres, in Lower Merion township, and the remainder to the petitioner, and appointed her sister, Mrs. Anderson, the plaintiff, executrix. Mrs. Anderson claimed that her sister Hannah owed her certain sums of money. The petitioner alleged that her aunt, Mrs. Anderson, induced her to sign the bond and warrant of attorney and the mortgage of the farm by representing that she was witnessing some papers in the matter of the estate of Hannah Jones, and that the petitioner did not know that she was signing a judgment or mortgage, and, had she known it, she would not have signed said papers.

From the testimony taken upon th.e rule to open the judgment, it appeared that Louisa T. Jones (now Mrs. Conway, the petitioner) was a daughter of a deceased brother of Mrs. Rebecca Anderson and Hannah Jones, and had lived with her aunt Hannah on the farm since she was two years old; and that her aunt Rebecca had also lived with them for many years. After the death of Hannah in 1882, Louisa continued to lived there with her aunt Rebecca until her marriage in April, 1886.

*412Mrs. Conway testified that she had never known that her aunt Hannah had willed the remainder interest in the farm to her until after the sheriff had served notice upon her of the proceedings on the mortgage, in December, 1886; that no demand had been made for interest or principal of the mortgage; that her aunt, Mrs. Anderson, had told her to go to town and sign a paper as a witness, and that she went with her brother to Mr. Bonsall’s office, in Phila.; that she did not read the papers, and that neither Mr. Bonsall, nor the notary, who took her acknowledgment, explained their contents, and that she did not know that she was signing any papers, nor that the papers were a judgment and mortgage. She knew that aunt Hannah owed aunt Rebecca $1,734; did not know how much was owing at the time of Hannah’s death. Aunt Rebecca told her, she had loaned $1,700 to aunt Hannah, but that she did not have the papers to show for it, the paper not having been signed. Witness signed the papers at Bonsall’s office, because she had every confidence in those who told her to sign.

Mrs. Anderson testified that she did not tell Louisa that she was to sign the papers as a witness, but simply that she was to sign a paper; that her sister Hannah had owed her $1,734 on a bond for fifteen or sixteen years, upon which no interest had been paid; also $1,700, for which she had nothing to show but the unsigned paper.

Mr. Bonsall testified that he explained the nature of the mortgage, etc., to Louisa T. Jones and her brother before she signed, and that she said she understood it, and that she seemed to know all about it before she came; that he told her it was to prevent the necessity of asking for an order of court to sell the property for payment of debts, that the amount of the mortgage was made up of two bonds which Mrs. Anderson held against Hannah Jones, one for $1,734 and one for $1,700, the latter not being signed;' Louisa’s brother directed him to prepare the papers and furnished him with the deed.

The court discharged the rule, in the following opinion by Swartz, P. J.:

“ The testimony discloses that the defendant could read and write; that she signed the bond and mortgage before a conveyancer, after the instruments were fully explained to her. She now says she was deceived and supposed she was signing the papers as a witness. She is not sustained in her testimony by any one. It seems her brother was present, when the whole transaction was fully explained to her. It would never do to open a judgment upon the unsupported testimony of the defendant, when the plaintiff and a disinterested witness contradict, in toto, the defendant, and deny every allegation of fraud or mistake alleged by the defendant.”

Mrs. Conway subsequently presented a petition stating that she had tendered the amount of the debt, etc., to the plaintiff in the judgment, and demanded a transfer of the evidence of claims against the estate of Hannah Jones, besides reiterating the charge of de*413ception in the former petition. The court, on March 31, 1888, ordered the rule to open the judgment to be reinstated.

Mrs. Anderson, the plaintiff in the judgment, was called by the defendant, as under cross-examination. She testified that she did not know where the bonds were. She admitted that there were receipts written upon the bond for $1,774.88,'signed by her, but testified that she had received no money, but had signed the receipts because she thought it would be a kind of comfort to her sister.

The court again discharged the rule, in the following opinion by Weand, J.:

• “ The first rule granted in this case was discharged by the court, because the evidence offered was, in our opinion, entirely insufficient to warrant us in doing otherwise. Upon petition of the defendant, we reinstated the rule, in order that she might, if possible, sustain her own testimony by some evidence that would justify us in granting her relief. It now appears that the only material fact upon which she relies, is that the plaintiff has failed to produce the original evidence of indebtedness. But suppose we open the judgment, how will the defendant be in any better position before the jury? The original indebtedness is merged in the new security, and defendant admits that she does not know of her own knowledge what the effect of certain endorsements on the old bonds would be even if produced, and there is no evidence that they are still in existence. It is not shown to us that there was any fraud or misrepresentation in procuring her signature to the bond and mortgage upon which this suit is brought; and although it is rather inequitable that she should be liable for the whole debt, instead of the life tenants bearing their . share of the burden, we cannot, as the case now stands, grant her any relief.”

*The assignments of error*specified the action of the court, i,in refusing to open the judgment; 2, in not refusing [?] to grant the prayer of the petitioner and thereby opening the judgment; 3, in discharging the rule ; and, 4, in treating the case as between persons who owed no special duty to each other, when, in point of fact, the plaintiff in said judgment was in law a trustee for the defendant as regards the subject in controversy.

*W. Horace Hepburn,*with him *J. P, Hale Jenkins,*for appellant.

The petition to open the judgment is to be treated as a bill in equity : Frauenthal’s Ap., 100 Pa. 295.

The appellee was a trustee and was confided in as a mother ; this judgment and mortgage was an attempt to transfer the interest of the cestui que trust to herself. The court below treated these parties as strangers, and cast the burden upon the appellant to show that there was no debt due from the decedent to appellee, although the latter admits that there were receipts for payments written on the evidences of indebtedness.

As executrix, the appellee was bound to keep an eye single to *414the will of the testatrix, and the interest of those for whom it provided: Miller’s Ap., 30 Pa. 493; Beeson *v.*Beeson, 9 Pa. 284; Rogers *v.*Rogers, 1 Hopk. 525.

Feb. 18, 1889.

It is not necessary to show actual fraud; it is enough if the appellee, by means of her position, gained an undue advantage over the appellant: Miller’s Ap., 30 Pa. 493; 1 White *v.*Tudor’s L.

C. Eq., note, p. 62 ; Story’s Eq. Jur., 12th ed., §§ 316, 321, 322; 3 Sug. Vend. (236), 6 Am. ed. 158; Ex parte James, 8 Ves. 352.

This principle applies to all who place themselves in loco parentis: Story’s Eq. Jur., 12th ed., § 309.

The remedy to recover the alleged debt of the executrix was suspended upon her assuming that office, and must be adjusted in the distribution: Story’s Eq. Jur., 12 ed., § 57.

*Chas.*Hunsicker, with him *George N. Corson,*for appellee.

The appellant was able to read and write. Writings cannot be set aside by the unsupported evidence of one witness: Phillips *v.*

Meily, 106 Pa. 536; Yeisley *v.*Bundel, 1 Mona. 67; Jackson *v.*Payne, 114 Pa. 67.

This was a family arrangement, to avoid getting an order of sale for the payment of debts. Such family arrangements are favored by the courts: Barton *v.*Wells, 5 Wh. 225 ; Cressman’s Ap., 42 Pa. 147.

Until overcome by testimony that, if believed, ought to move a chancellor to decree that the writing is void or should be reformed because of forgery, fraud or mistake, it must be suffered to stand: Knarry. Elgren, 8 Cent. 828; Wernet’s Ap., 91 Pa. 322; Roenigk’s Ap., 2 Cent. 68; Zaring *v.*Earley, 2 Pears. 352; Earley’s Ap., 90 Pa. 321; Kocher *v.*Rice, 2 Luz. L. R. 24.

Mrs. Anderson did not exercise control over the appellant in giving the judgment; did not go with her, but left her in charge of her own brother, whom she takes good care not to call as a witness.

Per Curiam,

This case, like Rhine’s Appeal, just decided, [the preceding case] was an attempt to get a judgment opened upon the ground of fraud in the procuring of said judgment, and upon the unsupported oath of the petitioner, flatly contradicted in all its material averments. The action of the court below was clearly right, and the discussion of the assignments of error would be a mere waste of time.

Decree affirmed, and the appeal dismissed at the cost of the appellants. h. j. l.