Opinion

Joseph Gensemer and wife, April 1,1878, conveyed to George S. Withers, the defendant, a tract of land for the consideration of $6,940; of this amount it was covenanted in the deed that $8,470 should remain a charge on the land, and the interest thereon, at five per cent, be paid to the grantors, Gensemer and wife, during their lives and the life of the survivor of them, and then the principal sum should form part .of the estate of the husband. For some years the grantee, Withers, paid the stipulated interest, when, on August 20,1886, the husband and wife, by deed duly acknowledged, assigned the amount charged to Joseph G. Miller, a grandson, who on April 23, 1889, transferred it by deed to Sarah K. Davidson. The wife of Gensemer died in April, 1891. On July 1, following, Margaret Miller, an only child of Gensemer, presented her petition to the court of common pleas, averring her father to be a lunatic and incapable of managing' his estate, whereupon an inquisition was directed, which found that he was a lunatic, and had been such for five years before the date of the finding; this last being August 6,1891, the commencement of the period of five years, antedated by fourteen days the execution of the transfer to Miller, and determined, prima facie, that at the date of that transaction, August 20, 1886, Gensemer was insane. The inquisition was confirmed by the court, and a committee appointed who duly qualified. Then Sarah K. Davidson filed a traverse to the inquisition; an'issue was framed between her and the committee, but before a trial was reached, Gensemer, on January 4, 1894, died. Mrs. Davidson then moved to quash the-proceedings; this, the court below refused to do; on appeal by her to this Court, see 170 Pa. 96, we held that the death of Gensemer, in the absence of legislation on the subject, had the effect of staying the lunacy proceedings just at that point, leaving undisturbed the inquisition, which was prima facie evidence of the lunacy, and that the burden of proof in anj*- action involving her right to the transfer was on her to show that the incapacity of Gensemer did not exist at the date of his transfer to Miller, the party from whom she purchased. Letters of administration on the estate of. Gensemer having been issued to Andrew G. Miller, this plaintiff, he brought suit against Withers, the grantee of the land bound by the charge, to recover the *135amount. He defended on the ground that he owed it, not to the representatives of Gensemer, but to Mrs. Davidson to whom it had passed by valid transfers, commencing with Gensemer to Joseph G. Miller, and from him to Mrs. Davidson. To this plaintiff replied the insanity of Gensemer at the date of the transfer. The defendant then undertook to rebut the prima facie raised by the inquest, by evidence tending to show that at the date of the contract Gensemer was sane. This was the issue of fact which we indicated in our former opinion was the real and only one in the case, and was the one on which it turned in the court below. The verdict was for defendant, a.nd plaintiff now appeals, assigning thirty-two errors. The first complaint is that, as Withers does not deny that he owes the money, the legal title of the administrator of Gensemer is sufficient to support the action as against him; that his sole duty was to pay to the beneficiary specified in his deed, and then, if there were equitable claims on the part of others to the money, the court would adjust them. There is no doubt that he in whom is the legal title has a right of action, and a court of law has nothing to do with the equitable claims of others raised by the pleadings; but the rule has no application to these facts; the very question, the answer to which ruled the case, was, who has the legal title to the charge upon the land? The covenant in Withers’s deed was in favor of Gensemer, but then he transferred to his grantee by deed all his title, both legal and equitable, and this grantee to Mrs. Davidson. As concerned the plaintiff, by the writings, he was in no more favorable situation than a stranger; by these, he had not the semblance of right, legal or equitable, to demand payment; but, to maintain his side of the issue, he offered evidence tending to show that when Gensemer executed the first deed he was insane, and therefore it was a nullity; that in consequence the administrator succeeded to the right, as if no deed had been made. And as touching the law the court so held, but as touching the fact, the jury did not so find. Clearly, the legal title could not be in two separate persons at the same time, and the obligor in the charge could defend against him in whom it was not, for all the title or right which Gensemer had heretofore held in the charge had, by his writing as formal as his deed to Withers, passed absolutely to Joseph G. Miller. If he had capacity to contract, then there was not a shred of title left in him on which to found *136a suit or to constitute a cause of action. To hold otherwise would be to permit the merest technicality, which under a different state of facts has substance, to smother the real merits of this issue. Perhaps Withers was not bound to defendjur, this ground. Pt may be the court would have permitted him to assume the position of a mere stakeholder and pay^the.-. money into court, when it could have directed an issue between the administrator and Mrs. Davidson to determine which had the legal title. But, that issue would have raised precisely the same question raised here; it was for the stakeholder alone to insist on the adoption of that remedy; if, however, he so chose, he could, as obligor bound to pay somebody, put him who made demand to proof of Ms title. The mistake made by the learned counsel for appellant is in assuming that, bejmnd controversy, his client had the legal title; but this was the very fact denied, and which he was bound to prove. On this mistaken assumption his many authorities are cited, all to the same point, such as Com. v. Lightner, 9 W. & S. 117, where the court says: “It would be strange if the legal title to sue were not enough to support an action at law in the name of the trustee, without proof that the suit was brought at the instigation of the true •cestui que trust. What has the defendant to do with that? The recovery will protect Mm from a repetition of the demand, and he can. ask no more.” While conceding this to be the law we add that it would be strange if one not having any title to sue could successfully maintain an action at law. The first assignment being without merit is overruled.

As to the argument that the charge on the land was in substance a voluntary deed of settlement and irrevocable, therefore nothing passed by the assignment to Miller, it cannot be sustained. The grantor undertook to provide for himself and wife an income for life, at the same time make secure the principal. It was wholly optional with him whether he would persist in the method adopted ; he merely made the amount a charge upon the land, so that no act of the grantee could affect the security or the certainty of the income. This was solely for the benefit of the grantor; he might have accepted the money in his lifetime if Withers chose to pay it; he might, by deed, transfer to another every benefit intended for himself, and every interest which would otherwise have formed part of his estate; it was not a settlement of part of his estate made for *137the benefit of others and accepted by them, but one for his convenience, as the deed in Frederick’s Appeal, 52 Fa. 338. It was a mere asset of his estate which he could and did dispose of in his lifetime.

The fourth assignment, which urges that the court should have instructed the jury that there existed a confidential relation between Gensomer and Miller, the first assignee of the charge, and, therefore, a presumption arose that the transfer was fraudulent, throwing on Miller the burden of proving that it was fair and conscionable, at once fails when the uncontradicted evidence is noted. Gensemer was embarrassed for want of money in his business; every dollar paid by Mrs. Davidson was applied to the payment of his debts and for the promotion of his business interests; Miller benefited nothing; besides, the consideration received was a full one. In the face of the evidence, which completely rebutted, the presumption, no advantage could have resulted to plaintiff from the court peremptorily affirming the point, and no hurt from the modification of it.

The objection to the competency of Miller as a witness is not sustained. True, he was nominally a party to the first deed, but he had long before suit, and in the lifetime of Gensemer, transferred every particle of interest he could have had to Mrs. Davidson ; but he never had any real interest; the transfer to him was merely nominal to enable him to readily transfer to a real purchaser, whereby his grandfather could obtain money.

The other assignments relate to the admission and rejection of testimony on the subject of Gensemer’s sanity. 'Necessarily, the testimony took a somewhat wide range,- the learned trial judge sought to confine it to a period not too remote from the date of the execution of the deed ; in this he succeeded, at least to the extent of excluding anything prejudicial to the plaintiff. A careful scrutiny of all these assignments detects neither error warranting a reversal nor merit warranting further discussion, and they are all overruled. The court below clearly apprehended the real issue, and tried it fairly on the lines suggested in our opinion on the former appeal. The law was plainly given to the jury, and the evidence was ample to sustain the verdict.

The judgment is affirmed.