126 A. 248 | Pa. | 1924
Argued May 13, 1924.
These two actions of ejectment, raising the same question, and therefore considered together, as they were in the court below, involve the right of the plaintiff, Kyle, to recover a part of certain coal lands, the title to which he insists was secured by virtue of a sheriff is deed, bearing date March 9, 1920. It therefore becomes necessary to determine the interest of the execution debtor claimed to have been acquired. On June 14, 1901, an agreement or declaration of trust was entered into between Hibbs, Higinbotham and Joseph R. Barnes, providing that title should be taken to certain property, proposed to be purchased, by the first named, as trustee for the benefit of all three. This contract was not recorded, but is shown to have existed by the pleadings in both cases, as well as by recitals in deeds later executed, and proof of the terms of the understanding is established sufficiently to justify its consideration in determining the respective rights of the parties here: Preston v. Preston,
Two conveyances were made by the owners of certain tracts, dated June 12, 1901, and Sept. 14, 1901, to "George L. Hibbs, trustee," holding in fact for himself, Robert W. Higinbotham and Joseph E. Barnes, and both were recorded. Presumptively, this would give an interest in the land in question to the three as tenants in common, and would entitle each to a one-third interest in the land described. On March 10, 1902, Higinbotham conveyed all of his portion to Hibbs, Joseph E. Barnes and James R. Barnes, their heirs and assigns, and it is claimed by the plaintiff that this transferred a one-ninth share in the mining rights to those named, thus increasing that of Hibbs to four-ninths, Joseph Barnes to four-ninths, and James R. acquiring a one-ninth interest only. On the other hand, the defendants insist that this was, in effect, a substitution of a new party as cotenant in place of the grantor, and that James R. Barnes became thereby the owner of a full one-third interest in the property. *105
On March 20, 1902, Hibbs withdrew from the association, and conveyed to Joseph and James a two-thirds interest, though it is insisted that at the time he was the owner of only four-ninths, as stated above. This vested in Joseph, if the contention of the plaintiff is correct, six-ninths or two-thirds, and in James, one-third. In 1905, Joseph transferred half of his then share, or a third, to one Gans, and this interest is not in dispute in the present proceeding. James later sold his interest to John T. Robinson, who, in turn, deeded it to others, but it was reconveyed to him on December 7, 1921, and he is therefore named as a defendant in the first action. There is joined the wife of Hibbs, to whom any interest he might have had was devised by will, probated March 20, 1908. In the second case, she is also made a party, as is Josephine Moore Heft, who received a possible interest in one of the tracts involved by virtue of the deed of James R. Barnes, dated January 27, 1915, the grantee being one Kent, through whom Mrs. Heft claims. The facts above related were all shown by documents produced at the trial, and no oral testimony was introduced. Verdicts were directed for the plaintiff in both cases, and a refusal to enter judgments n. o. v., or grant new trials, followed. These appeals are from the decisions rendered.
Ejectment will lie by one tenant in common against his joint owner, as here, when ousted from possession, or where the right to participate in the enjoyment of the land is denied: McMahan v. McMahan,
What would investigation have disclosed in the present instance? Only that Hibbs was holding, for the convenience of those interested, the title to the property, in which originally each individual named had admittedly a one-third interest, expressly agreed upon. He was only a passive trustee, so chosen as a medium for conveying, if necessary. That this was the understanding is evidenced when Higinbotham made his transfer. It cannot be said that the last named, when he executed his deed, was merely substituting James Barnes for himself as a cotenant or partner, intending thus to transfer a third interest to him; nor is there justification for the belief that when Hibbs withdrew in 1902, and made his conveyance, it was solely a recognition of the ownership of one-third shares of the other two tenants in common. There was an express trust in this case, whereby the individual interests of those involved were fixed, and no reason exists for construing the arrangement in any other way. By the agreement entered into, legal estates became vested in those associated (Steacy v. Rice,
The judgments in both cases are affirmed. *107