Keck v. Vandyke
141 A. 446
Pa.
1928
Check Treatment

Opinion by

Mr. Justice Simpson,

Dеfendant appeals from a decree in equity requiring him to convey to plaintiffs the legal title to a propеrty, standing in his name, but as to which it was decided that a resulting trust existed in their favor. Both in his statement of the questions involved (which limits the scope of the appeal: Furman v. Broscious, 268 Pa. 119; Slemba v. Hamilton & Sons, 290 Pa. 267), and in his brief of argument, appellant presents four points for our сonsideration, three of which are unimportant in view of the facts not disputed on this appeal, and the ‍‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌​‌​​​‌​​‌​​​‍fourth is: Doеs sec. 6 of the Act of April 22, 1856, P. L. 532, 533, bar the claim, since possession was not taken within five years after the right of entry accrued?

Plaintiffs averred that the purchase price of the property in dispute was paid by their father, through whom they claim, and defendant alleged that the sum thus paid came from the assets of a firm in which he and the father were partnеrs, and “was not equal to the amount *535 of accumulated profits [defendant] then bad in tbe said firm.” Tbe court below resolvеd tbis issue by finding, as a fact, that defendant was not a partner in tbe business, but “was ‍‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌​‌​​​‌​​‌​​​‍an employee only.” That finding is not assigned as errоr, and tbe fact thus found, is, therefore, conclusively determined to be true, when considering tbis appeal: Wright v. Barber, 270 Pa. 186. It is a mаtter of no moment, even if it be so, that defendant’s compensation, as sucb employee, was to be measurеd by a percentage of tbe gross sales or tbe net profits of tbe business, in tbe absence of averment and proof,— and here neither appeared, — that tbe money which paid for tbe property bad, prior to or at tbe time of tbe purchase, been transferred to or set apart for tbe benefit of defendant. Until thus segregated, all tbe firm money belonged to plaintiffs’ father, as sole owner of tbe business. It follows that a resulting trust arose in favor of tbe fathеr (Lynch v. Cox, 23 Pa. 265; Casciola v. Donatelli, 218 Pa. 624; Epstein v. Ratkosky, 283 Pa. 168); and, tbis being so, admittedly it now vests in plaintiffs, unless tbe right was lost because ‍‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌​‌​​​‌​​‌​​​‍of a failure to comply with tbe requirements оf sec. 6 of tbe Act of 1856, supra.

Tbis section provides that “no right of entry shall accrue or action be maintained......tо enforce any implied or resulting trust as to realty, but within five years after sucb......trust accrued, with tbe right of entry, unless sucb......trust shall have bеen acknowledged by writing to subsist by tbe party to be charged therewith within the said period.” In Clark v. Trindle 52 Pa. 492, 495, speaking by Justice Thompsоn, we said: “Tbe word ‘with right of entry’ at tbe end of tbe clause I esteem as material to be considered in construing it. Tbe exрression evidently means, I think, that, if there ‍‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌​‌​​​‌​​‌​​​‍be neither entry nor possession taken by the party, in whose favor tbe trust results, within five years after it accrues, and no acknowledgment in. writing, tbe trust cannot thereafter be asserted in law *536 against the trustee. It mеans this or nothing, and we may not urge the latter, if the words are susceptible of a definite meaning......Every possession, where there is title, is supposed to be in subordination to it. It is notice of title to all the world, and most clearly so to the trustee. If the statute was intended to bar stale and secret claims against legal titles, as it undoubtedly was, it is wide of that purposе to apply it to cases in which, as between the parties, it is neither; but in a state of execution daily and hourly, as must bе the case where possession and enjoyment is in exact accordance with the trust......We think that neither in the words, nor by interpretation, founded on the mischief to be prevented by the statute, is a case within it where the cestui que trust has possession and occupancy during the period in which the statute is running. If the statute had begun to run this would stop it.” To the same effect are McLaughlin v. Fulton, 104 Pa. 161; White v. Patterson, 139 Pa. 429; and Miller v. Baker, 166 Pa. 414.

Prom ample evidence, the court below found, as a fact, that plaintiffs’ father entеred into possession of the property within five years after the right of entry accrued, that is, within five years after the dеath of a life tenant, who was in possession at the time the deed to defendant was executed and whose title was not conveyed by that deed; and that the possession of plaintiffs’ father, their mother, who had a life estate under the father’s will, and plaintiffs themselves, who were ‍‌‌​‌‌​​‌‌‌‌‌​​​‌‌‌‌‌‌​‌​​‌‌​​​‌‌​​‌‌​‌​​​‌​​‌​​​‍devisees in remainder, has been continuous since that time. But, says defendant, thеre was .also uncertain testimony by plaintiffs’ own witnesses, as to the time when possession was first taken, and hence the рroof fell short of the “clear, precise and unequivocal” evidence required in this class of cases. The evidence which the court below believed, and on which it based its finding of possession duly taken, was of the charactеr required, and hence the fact thus found is conclusive *537 on this appeal, irrespective of objections which might be made to any other evidence. Moreover, on the point now under consideration, that strictness of proof was not required. Everything necessary to be proved in order to establish the fact that the equitable title did not accord with the legal title, as expressed in the deed, had to be shown by evidence of the character stated, for, sо far as concerns such matters, the attempt was to write extrinsic trust provisions into a deed which is absolute on its face, and hence the strict rule relating to the alteration of written instruments should be applied. In what we are now considering, no such attempt was made, and no writing was sought to be altered; hence, the reason for the rule not existing, the rulе itself is not applicable: cessante ratione legis, cessat ipsa lex.

What has been said answers also appellant’s contention that appellees are barred by their laches. “Laches will not be imputed to.one in peaceable possession of land for delay in resorting to a court of equity to establish his right to the legal title. The possession is notice to all, of the possessor’s equitable rights, and he need only assert them when he may find occasion to do so”: White v. Patterson, 139 Pa. 429, 438; Master v. Roberts, 244 Pa. 342.

The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.