179 Pa. 1 | Pa. | 1897
Opinion by
■ The questions raised by the several assignments of error will be readily comprehended after a glance at the facts out of which they grow. The plaintiff is a purchaser at sheriff’s sale of a farm sold as the property of Daniel Lutz. This proceeding was instituted by the purchaser for the purpose of obtaining possession. The defendant in the judgment concedes that such title as he had has passed by the sheriff’s sale to the purchaser, but alleges that as to about twenty twenty-ninths of the title he held for the use of Ms wife, Henrietta Lutz, under a trust resulting from the payment of $2,000 of the purchase money by her upon a parol agreement that she should be an owner in proportion to the purchase money paid by her. To establish this trust it was mcumbent on Mrs. Lutz to show by evidence that was clear and satisfactory, first, that she did pay a portion of the purchase money for the farm in controversy, as alleged; second, that it was paid upon an agreement that she was to have the title to the land, or such portion of it as she paid for; and third, that the money so paid belonged to her as her separate estate. Upon the trial of the cause Mrs. Lutz gave evidence tending to prove the payment of $2,000 of the purchase money, and that it was paid upon the agreement alleged. To show that the money was her own, and received from her father’s estate, she proved by the testimony of several witnesses that not long after her marriage her father proposed to advance to her the sum of $400 in land if she and her husband would move upon the land and improve it. To this they both agreed., Her father had however the opinion that because the note of a married woman was not valid as an obligation
'The allegation of the defendant was that the conveyance to Lutz and the taking of his note as a memorandum was the method by which Pyle sought to secure the land to his daughter, and charge its value to her to be paid out of her distributive share of his estate. If this was believed it would not matter when the deed was made or the note taken. It was a gift to Mrs. Lutz. The answer of the learned judge to the plaintiff’s third point is also clear error. It affirms that a resulting trust can be raised only by payment of purchase money at the time
The judgment is reversed and a venire facias de novo awarded.