Church v. Ruland
1870 Pa. LEXIS 385
Pa.
1870
Check Treatment

The opinion of the court was delivered,

by Sharswood, J.

— It cannot be maintained, at this late day, that the effect of investing the courts with separate equity powers, to be exercised according to the mode of proceeding in use in the English Court of Chancery, was to divest them of any part of the jurisdiction before possessed by them to afford the same relief through common-law .forms. Equity is still as much a part of the law of Pennsylvania as it was in 1787, when Chief Justice McKean so declared it to be in Pollard v. Shaafer, 1 Dall. 210; Lehr v. Beaver, 8 W. & S. 106. The action of ejectment may still be employed as a remedy to compel the specific performance of a contract for the sale of land, or to enforce a trust in regard to it. Every volume of reports since 1836 abounds with the evidence of this in the determination of numerous cases in which it has been silently assumed. Besides, it was expressly so decided in Aycinena v. Peries, 6 W. & S. 257, Biddle v. Moore, 3 Barr 161, and Corson v. Mulvany, 13 Wright 88, so that if any point is ever to be considered completely at rest, it is this. Nor is such an administration of equity justly open to the reproaches cast upon it in the oral argument of this case. It is not the substitution of twelve unlearned chancellors for a lawyer prepared for his office by the lucubrations of twenty year's. The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any evidence reasonably tending to prove a fact, must be submitted to be passed upon by that tribunal. The conscience of the judge as chancellor must be satis*442fied, and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of conflicting testimony. What is this but the trial of a feigned issue out of chancery ? If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the. jury either by a nonsuit or a binding direction in his charge, as the case may require : McBarron v. Glass, 6 Casey 133; Todd v. Campbell, 8 Id. 252; Bennett v. Fulmer, 13 Wright 162; Miller v. Hartle, 3 P. F. Smith 111.

The assignments of error, fifteen in number, need not be separately considered. The statement of a few well settled principles and rules of decision disposes of them all.

That a trust ex maleficio is not within the prohibition contained in the 7th section of the Statute of Frauds and Perjuries, 29 Car. 2, c. 3, which was .adopted and enacted in this state by the 4th section of the Act of April 22d 1856, Pamph. L. 533, has been the uniform doctrine of the English courts: Hill on Trustees 59, and the cases there cited, to which may be added Plumer v. Reed, 2 Wright 46; Beegle v. Wentz, 5 P. F. Smith 369, decided by this court since the passage- of the Act. Indeed it is not easy to see how such a trust ever could be made out except by parol evidence, and if this is not competent a statute made to prevent frauds would become a most potent instrument whereby to give them success. That this doctrine is applied to cases arising under wills where a person procures a devise to be made in his favor on the distinct declaration or promise that he will hold the land in trust either in whole or in part for another may be seen in the cases referred to in 1 Jarman 356; 1 Story’s Equity, § 256. It is not | affected by the statutory provisions on the subject of wills. The proof offered is not of any alteration, revocation or cancellation, which must be evidenced in a particular manner. It gives full effect to the will and every word of it, and to the conclusiveness of the probate, where it is conclusive. It fastens upon the conscience of the party, having thus procured a will, and then fraudulently refusing or neglecting to fulfil the promise on the faith of which it was executed, a trust or confidence, which a court of equity will enforce by compelling a conveyance when the proper time for it has arrived; and with us in Pennsylvania such a conveyance will be considered as having actually been made, whenever it ought to have been made. The cestui que trust will be entitled to recover in ejectment against the trustee, and all in privity with him. This was decided in Hoge v. Hoge, 1 Watts 163, a ease fully and ably argued and considered, both by the counsel engaged in the cause and by the court, as appears in the elaborate opinion by Chief Justice Gibson. It was there held' that if a testator be induced to make a devise, by the promise of the de*443visee that it should be applied to the benefit of another, a trust is thereby created which may be established by parol evidence; and, that this is not contrary to the Statute of Wills. “It is contended,’ said Gibson, C. J., “ that parol evidence of a trust is contrary to our Statute of Wills, which corresponds as far as regards the point in dispute, with the British Statute of Frauds. Undoubtedly every part of a will must be in writing; and a naked parol declaration of trust in respect of land devised, is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee to get at him; and there is nothing in reason or authority to forbid the raising of such a trust, from the surreptitious procurement of a devise.” To the same effect is Jones v. McKee, 3 Barr 496, s. c. 6 Barr 425, a case the same in principle and very similar in its facts to that presented upon this record.

Was there then given on the trial in the court below such evidence of the procurement of the devise of the land in question upon a promise to hold in part for the benefit of the plaintiffs as ought to induce a chancellor to decree tha enforcement of a trust ? If there was, the case was properly submitted to the jury. Three witnesses, entirely disinterested and occupying the same relation to both parties, testified to conversations between the testator, Thomas Griffin, and his daughter Letta, the devisee named in the will, very soon after its execution. Thomas Griffin asserted and his daughter did not deny but admitted that he had made the devise of the whole tract to her alone in fee, by her persuasion, and under her solemn promise that on her death one-half of it should go to the children of her sister Charlotte Stevens. He required her to reiterate this promise in the presence of witnesses. Another disinterested witness testified that on one occasion she heard him, in Letta’s presence, state that it had been agreed between them that the heirs of her sister Charlotte should have their mother’s portion after her death. This is something very different from the mere parol declarations by a testator of what he intended. It was as strong as if witnesses had been produced present at the agreement before the execution of the will. Several other witnesses testified to Letta’s admissions at different times that one-half of the land at her death was to belong to her' sister’s children. Her acts and declarations when she made a contract of sale of the land were strongly corroborative of the same thing. She consulted her nephews, and according to the testimony of one of them, McKiel Stevens, told him she would have the payments so arranged that out of the first instalment she could let the heirs have $500 each, and that as the payments fell due she would divide it among them, with the exception of what she wanted for her own *444use. That Thomas Griffin at other times stated that he wanted Letta to remember Charlotte’s children, when she was done with the property, or that she should remember the Stevens’ children if she had anything left, did not materially weaken the force of the direct evidence before adduced. Nor did the fact that he did not communicate the agreement to his counsel when he drew the will, though it was certainly a circumstance to be weighed by the jury, necessarily contradict or impeach the testimony of the witnesses as to the agreement admitted by Letta to have been made before the will was drawn. Indeed even regarding the evidence to be inconclusive of the existence of such prior agreement, the testimony of Durlin Griffin, if believed, would establish the trust; for he stated that Thomas Griffin said to Van Storch, who was called in as a witness that he was going to make another will, but that Letta by her promise made at that time prevented him from doing so. There was then sufficient evidence, if believed, to establish the trust.

It is supposed, however, and one of the assignments of error rests on that basis, that Letta, the devisee, could claim as a bond fide purchaser under her vendor, Edmund Griffin, who does not appear to have had notice of the trust. Undoubtedly if a person, though with notice, purchases from one without notice, he is entitled to stand in his shoes, and take shelter under his bona fides. If it were not so the bond fide purchaser without notice might be unable to dispose of the property, and thus its value in his hands be materially deteriorated. But if the second purchaser in such case be the original trustee, who reacquires the estate, he will be fixed with the trust: Hill on Trustees 165. If an express authority for so plain a position be needed it will be found in Kennedy v. Daly, 1 Schoale & Lefroy 379.

Nor is the plea of the limitation contained in the 6th section of the Act of April 22d 1856? Pamph. L. 533, of any avail. That section provides “ that no right of entry shall accrue or action be maintained * * * * to enforce any implied or resulting trust as to realty, but within five years after * * * * such equity or trust accrued, with the right of entry.” During the life of Letta, the devisee, the trust did not accrue. The fraud from which it arose was not consummate until her death without having made a will in favor of the children of Charlotte Stevens. Until then no action could have been maintained: Price’s Appeal, 4 P. F. Smith 472.

Judgment affirmed.