128 A. 496 | Pa. | 1925
Argued February 2, 1925. In this action of ejectment, Mary G. Gates, plaintiff, recovered a verdict on which judgment was entered; defendant has appealed.
Wilson Gardner owned the farm in controversy, subject to certain mortgages and judgments; August 25, 1894, it was sold at sheriff's sale on a fi. fa. issued upon one of the judgments, and was purchased in the name of defendant, who subsequently took title from the sheriff. Gardner died intestate May 16, 1896, and his wife, Sarah Gardner, died testate April 1, 1922, leaving her real estate to her children, including Mrs. Gates, to whom, prior to the institution of the present suit, her cotenants conveyed their shares, thus vesting in her the whole of the mother's real property. She claims the *588 property in controversy on the theory that defendant, acting as agent for Sarah Gardner, his sister, purchased it at the sheriff's sale and held the legal title thereto in trust for her. On the other hand, defendant contends that he bought the farm for himself, and was at all times willing, while his sister lived, to transfer it to her upon the settlement of certain accounts between them, but that he was under no legal obligation to do so; in short, defendant, claiming to be owner in fee, denies that plaintiff has any right, title or interest in the property.
The issues involved were submitted to a jury, which was specifically told: If "from all the evidence in the case," it believed there was a distinct understanding between defendant and Sarah Gardner at the time of the sheriff's sale, that the property was to be purchased by him and held in trust for her, that it was "to be paid for with her funds, and that she did pay for the same, — although such payment may have been temporarily deferred," — then a trust resulted in her favor. Hence the verdict, though a general one, must be viewed as comprehending conclusions of fact that the property was bought in by defendant, representing Sarah Gardner, under an agreement that the purchase money was paid on her account, to be refunded to him subsequently; and these conclusions sustain the plaintiff's case.
Defendant contends that (1) the primary proofs do not warrant the underlying findings of fact essential to support the above-stated conclusions; (2) even if treated as found, the evidential facts depended on for the purpose do not justify the above conclusions; and (3) under the Statute of Frauds, section 4 of the Act of April 22, 1856, P. L. 532, the evidence as a whole is legally insufficient to prove a trust. None of these contentions can we sustain.
In Bigley v. Jones,
The proofs we have in mind are as follows: Defendant, who is an attorney-at-law, rendered several accounts to Sarah Gardner during her life; these accounts begin with items bearing date prior to the sheriff's sale, and indicate that he was then acting as her agent, and continued to act in that capacity till her decease; they contain a small annual charge for services rendered by defendant to his client; defendant likewise charges therein an item of $31.66, paid to the sheriff in August, 1894, immediately after the sale of the real estate in controversy; and the return made by the sheriff, which was also offered in evidence, shows conclusively that $5 of this amount represents the full purchase price of the property (subject to encumbrances); directly after this item, defendant charges Mrs. Gardner with interest from the date of the payment in 1894 to July 1, 1896, when the latter paid to the former $900 in cash, a sum which she had received from insurance on her husband's life.
Speaking generally, defendant's accounts indicate that he was managing Mrs. Gardner's affairs, and treated the proceeds of the farm as though the property belonged to her and not to him. More specifically, the item covering the purchase price of the property here involved, and the one immediately thereafter, covering the interest on the first item, plainly indicate that defendant treated the purchase money as an amount advanced on his sister's *590 account, to be repaid him; and on which he therefore charged her interest from date of payment to date of settlement.
In addition to the above evidence of defendant's agency and of his payment of the purchase money for his constituent, there was introduced in evidence a series of written declarations, contained in letters written by defendant to Mrs. Gardner and to her children, wherein he repeatedly refers to the farm and the landlord's share of the crops raised on it as belonging to her, using in the letters to his principal such terms as "your farm" and "your rents," and in the letters to one of her sons, who was the tenant on the farm, terms like "your mother's share of corn" and "her corn and oats," and telling the son that his lease could be renewed "if it is satisfactory to her for you to stay." Moreover, a number of witnesses testified that Sarah Gardner lived on the premises in controversy from the time of the sheriff's sale until the date of her death, and farmed it for several of those years; that, when it was rented, she received the landlord's share of the crops and continued to occupy part of the property; that, from two years after the sheriff's sale, until the time of her death, the property was assessed for taxation in her name; finally, and comprehensively, that during all this time, she and the others concerned, including defendant, always treated the property as belonging to her.
Of course there was opposing evidence, and appellant contends that inferences other than those referred to as favoring plaintiff should have been drawn from the documentary proofs we have mentioned, but, taking the evidence as a whole, it is sufficient to warrant the verdict for plaintiff, comprehending, as the decision of the jury does, the specific findings that the property was purchased by defendant for Sarah Gardner, with money advanced to her by him, but which was subsequently repaid; and that there was an agreement between them at the time of the sheriff's sale that he would in this manner *591
purchase the property on her account. These findings, under our authorities, are sufficient to sustain the verdict: Lloyd v. Carter,
The fact that the proofs relied on by plaintiff consist largely of declarations made by defendant, after he acquired title, was a circumstance to be considered by the jury, but it neither rendered those proofs incompetent nor the body of the evidence legally insufficient to sustain the findings in plaintiff's favor.
In McCloskey v. McCloskey,
The oral declarations of the alleged trustee may also be relied upon to prove payment of purchase money by or on account of the cestui que trust (Gregory v. Setter, 1 Dallas 204 or 193*), and when evidence appears from which there can be made a finding of such payment by the beneficiary, this establishes the trust prima facie: Lynch v. Cox,
While the law contemplates payment of the purchase money by the beneficiary at the time of the creation of the trust, yet the funds may be advanced by another on his account (Kauffman v. Kauffman,
The tax assessment in Mrs. Gardner's name (Miller v. Baker,
The fact that certain leases were made in the name of defendant, as lessor, was for consideration by the jury, *593
but was not controlling; as said in Olinger v. Schultz,
We shall not pass specifically on the several assignments of error, for none is in proper form. All save the last of them complain of answers to points for charge or of excerpts from the charge itself, but they show no exceptions to the instructions complained of. Rule 24 of this court states expressly that in such instances the assignment must show the exception taken in the court below. True, section 6 of the Act of May 11, 1911, P. L. 279, provides that "when a decision appears of record, an exception is not necessary"; but, construing this act, we have repeatedly decided that it applies only to final orders or rulings in the nature thereof: Com. v. Bonnor,
The purpose of the last specification of error is to criticise the court below for refusing to enter judgment n. o. v. in favor of defendant. The principal points argued under this assignment have been passed upon, but it may be noted that the order which defendant quotes therein, as disposing of his motion for judgment, appears to dispose only of his rule for a new trial. The Act of April 22, 1905, regulating practice on such motions, provides that, if the court below does not grant a new trial, it shall be its duty "to enter such judgment as should have been entered upon the evidence"; it further provides that, "from the judgment thus entered either party may appeal." Since, subsequent to the motion for judgment n. o. v., a judgment was in fact entered for plaintiff, we shall treat the assignment under consideration as though it showed an order disposing formally of defendant's motion for judgment n. o. v., and as complaining of the final judgment; on that theory we have reviewed the case and shall dismiss the motion to quash the appeal.
The judgment is affirmed. *595