78 Pa. 100 | Pa. | 1875
delivered the opinion of the court, May 10th 1875.
It is indispensable to the success of the plaintiffs in this suit, that the instrument executed by George F. Power on the 17th of September 1866, the day of the sheriff’s sale of the property of Caleb Barstow, should be connected with the agreement alleged to-have been made between Power and the other creditors of Barstow, on the 3d of June 1866, at the office of Mr. Rawle. A large mass of details, tending to establish such a connection, was presented to the master. The whole history of the efforts of the creditors to collect their debts, and of the legal proceedings employed for that purpose, from the time of Mr. Barstow’s failure, was disclosed. But the general evidence was of a character to corroborate and strengthen direct testimony of the essential fact, rather than to afford independent proof of its existence. At the last, the disposition of the questions in dispute must depend upon the statement of Mr. Rawle. From the multiplied details that are grouped in the record around the main point of dispute, it is believed that if he had been able to say, from a distinct recollection, that the agreement of the 17th of September was the execution of the agreement of the 3d of June, the duty of the master would have consisted in finding the allegations of the bill sustained. There is, fortunately, no embarrassment in dealing with his testimony. Just what he meant to say was said in unmistakable and distinct terms, and the exact extent of his knowledge, and the precise limits to which his recollection went, were accurately defined.
In his examination in chief, Mr. Rawle said: “If I remember rightly, the projected sheriff’s sale was the result of an arrangement, and was not what is commonly called an adversary proceeding. Besides, the fact that the property was held in common with John Egerton, who was not only supposed to be affected in his mind, but had made a peculiar conveyance to his brother-in-law, there were complications as to the Barstow moiety which it was thought this sale would correct, and all parties were acting'in harmony and for the benefit of the Barstows, for whom much sympathy was felt. All considered that if properly managed and nursed, the property would not only pay its debts, but leave a
If the testimony of Mr. Rawle had closed at this point, it would probably, in its connection with the statements he had made of the result of the meeting of creditors in his office, with the terms of the paper in question, and with the voluminous corroborative proofs produced before the master, have been controlling in the decision of the cause. But it is clear from his answers on the cross-examination, that his impressions were derived from his participation in isolated transactions, and that he had not kept himself familiar with the current details of the proceedings in the interval between the meeting in June and the sale in September. In answer to the question whether his interviews and conversations with Mr. Warriner were not confined to the subjects of the American Car Company’s property, and the ground-rents binding this and other property, Mr. Rawle said: “It is impossible for me to say. The interests were very numerous, and more than proportionally complicated, and I cannot discriminate.” He was unable to say positively whether he had ever met Mr. Power before the meeting of the 3d of June 1866; he could not say whether that meeting referred to in his note to Mr. Gummey, was
On the part of the defendants, the whole theory of the plaintiffs 'that the instrument executed on the day of the sheriff’s sale was to be treated as having been made in pursuance of an agreement entered into in the previous June, was contested from the outset.
That Mr. Barstow was active in promoting some arrangements by which, after satisfying his creditors, something could be saved out of this property for himself, and that he hoped, to secure this result through the aid of Mr. Fosdick and Mr. Power, is sufficiently obvious. This appears from the whole tenor of his correspondence, and especially from the terms of his letter to Mr. Rawle, of the 14th of September 1866. But the facts found by the master show that he was not a party to the agreement made on the day of sale, and the evidence indicates that he had no personal knowledge of it. There were obvious reasons why his general creditors in New York would not have been likely to inter: fere. His interest in the property was an undivided moiety, and was encumbered to the extent of'$235,000. Its value, at the time of these proceedings, was purely conjectural. In December 1867, after the partition had been completed, Mr. Rawle wrote to Messrs. Spalding and Richardson, that the whole property had then been recently estimated at $300,000, making the value of the Barstow moiety $150,000. “But,” Mr. Rawle added, “ this estimate is based upon the careful management of the property for probably several years to come. It might be doubtful whether, at a forced sale, it would bring one-sixth of this estimated value. The property has always been unlucky, though it is valuable, and directly opposite the heart of the city, near the Schuylkill.” In this connection, as showing the probable relation of the New York creditors to the transactions by which the title was vested in Mr. Power, a passage in the letter from Messrs. Yose and McDaniel, to Mr. Rawle, dated the 21st of April 1871, is significant. They wrote as follows: “ If this property has really become valuable,
No distinct evidence — none that would intelligibly define the rights of any of the parties — was given before the master as to any specific terms agreed upon, or any specific interests to be affected at the meeting on the 8d of June 1866. The view of the plaintiff as to the effect of the agreement then made, could be supported only by affirmative proof that, in pursuance of that agreement, the paper of the 17th of September, was executed by Mr. Power. Such proof has not been made, and the evidence of the defendants, direct and circumstantial, supports the conclusion which the master reached, that the transaction was exclusive of any participation by the general creditors of Mr. Barstow, and independent of any action they had taken.
If the proceedings resulting in the sheriff’s sale were adversary as to all parties except Mr. Eosdick, and the consideration for the agreement which Mr. Power executed emanated solely from him, it is manifest that no duty was created by the agreement towards
The remaining question is subsidiary to that which has been discussed. The master has found, as a fact, that no fraud was practised by Mr. Power in the purchase of the property. He made no promise by which any creditor was deceived, misled, or induced either to act or to forbear action. A simple avowal of acquisition for the use of another, whether made cotemporaneously with or subsequently to the fact, will not of itself support an allegation of a trust: Robertson v. Robertson, 9 Watts 32. The later propositions and negotiations between the parties cannot stand in the place of proof of some distinct fact requisite to fix on Mr. Power the responsibilities of a trustee. “An attempt to create and enforce a specific trust,” it was said by Mr. Justice Washington, in
.The evidence before him justified the master in finding that the conveyances of the Drayton moiety of the land, by Borland and Morrill to Marston, were made in good faith and independently of any ownership, interest or control of Mr. Power; and in finding that the allegation iii the bill that the conveyance from Power to Marston of the 16th of October 1868, was made for fraudulent purposes, was unfounded. Indeed, it is believed that the rulings of the master were essentially accurate throughout his comprehensive and satisfactory report.
Decree affirmed and appeal dismissed, at costs of appellant.