51 Pa. 377 | Pa. | 1866
The opinion of the court was delivered, by
That in 1837 the ancestor of the plaintiff had an equitable title to an undivided moiety of the three hundred acres, and that he and Rider were then tenants in common of the whole, are facts not in dispute. The allegation of the defendant is that a parol partition was made in 1838, by which he acquired title in severalty to one hundred and fifty acres of the west end of the tract, and that his co-tenant, Jacobs, became owner in severalty of the other one hundred and fifty acres, the east end. It is now contended there was no sufficient evidence of such parol partition to take the case out of the Statute of Frauds and Perjuries. It must be admitted the evidence was not very satisfactory, and perhaps, were the matter “res nova” w.e should be justified in holding that it should not have been submitted to the jury. But the case has been in the court heretofore, and upon substantially the same evidence. It was then held (10 Wright 378), that the testimony, if found by the jury to be true, was sufficient to establish an executed parol division of the land. We do not now feel at liberty to depart from what was then ruled, and hence we cannot say there was error in the answer given to the plaintiff’s first and seventh points.
■ The state of the record is such that we cannot know whether the jury found there had been an executed parol partition. If there was such a partition, the right of the plaintiff to recover any portion of the west end of the tract was gone, and the subject of the controversy between the parties was reduced to the eastern one hundred and fifty acres. • How was the plaintiff’s title to that in severalty divested ? This brings us to other important questions in the case. The defendant claims that the title to that part of the tract has also become vested in him, and he endeavours to sustain his right to it in three ways; under the Statute of Limitations of March 26th 1785; under a tax sale of the whole three hundred acres made December 14th 1830, to John Philliber, and by him assigned to the defendant May 9th 1842 ; and under conveyances obtained by him from Latimers, the holders of the legal title in 1849 and 1853. We shall consider each of these.
The ejectment was commenced on the 24th of July 1860. If the defendant has a title to any part of the east end of the tract, the part which he alleges was set off in severalty to Jacobs in 1838, he must have had adverse, continued and exclusive possession of that part from July 24th 1839, down to the commencement
Passing now to the second ground of defence, and assuming still that the jury found a parol partition executed, we have to consider the effect of the tax sale. It was a sale of the whole three hundred acres assessed to Rider and Jacobs in 1838. Probably the assessment was made in the fall of 1837, while they -were confessedly tenants in common. The sale was made December 14th 1840, to John Philliber, who, on the 9th May 1842 assigned his deed to Rider for the consideration of $15.40. Had Rider and Jacobs continued tenants in common, this transaction could be called nothing more than a redemption. Rider could have obtained by it no advantage over his co-tenant. It would not even have converted him into a trustee for his co-tenant. The outstanding right was called in within the period allowed for redemption. But if when the land was sold the parties had become one the owner of the east end in severalty, and the other the sole owner of the west end, the effect of the transaction might be different, and it clearly would be, if the taxes for which the land was sold had been assessed after the tenancy in common had ceased. There would then have been nothing to prevent either of the parties from buying the land of the other, exclusively for his own use. This case differs, however, from the one supposed. The taxes were assessed while Rider and Jacobs were joint owners. They were a burden upon the whole three hundred acres. It was as much Rider’s duty and interest to pay them as it was the duty and interest of Jacobs. And when the land was sold, recovering the title was essential to the preservation of Rider’s
It follows that if the defendant has any protection against the claim of the plaintiffs, it must be found in the conveyances he obtained from the Latimers. The evidence in relation to these was that the original article of agreement between Rider and Jacobs and Gaskell, the agent of the Latimers, was foi1 some years in the possession of Jacobs. He died in 1849. Not long before his death Rider obtained possession of the article, by the pretence that he wanted to borrow money, and wanted the papers to give the land for security. Having obtained them, he went to Gaskell, told him that Jacobs’s part had been sold for taxes, that the time of redemption had expired, that the land wa!s lost to Jacobs, and that he (Rider) had bought the land from the purchaser at tax sale. Mr. Gaskell was induced to give a new article in lieu of the first, by which the Latimers agreed to sell the whole three hundred acres to Rider alone, for a sum which appears to be about what remained unpaid of the purchase-money mentioned in the first article. This new agreement was dated on the 9th of June 1849. Prior to that time Jacobs lived near Pittsburgh, and he continued to live there until he died. On the 19th of January 1853, Rider obtained a deed from the Latimers, for himself, for two hundred acres, and at his request a deed was made to a man named Dietrich for the other hundred acres. If these facts were believed by the jury, and there was abundant evidence of them, a gross fraud was perpetrated by Rider in obtaining the legal title to himself. His representations to Jacobs were false, and his assertions to Gaskell. He obtained the first article by covin, and was thus enabled to deliver it up, and procure another. Undoubtedly he became a trustee for Jacobs, or the heir of Jacobs, of that part of the east end of the tract for which he obtained title from the Latimers. Holding thus the title to that parcel as a trustee ex maleficio, he must surrender the possession unless he is protected by the sixth section of the Act of Assembly of the 22d of April 1856. That section limits to five years the time within which an action may be brought to enforce any implied or resulting trust as to realty. Rut there .is a proviso that as to any one affected with a trust by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same. In reference to the
If it be said that a trust arose in 1849, when the defendant gave up the first article and took a new one between Gaskell and himself alone, the same considerations are applicable. There is no evidence that Jacobs ever knew of such a substitution. He died in that year, whether before or after the fraudulent procurement of the second article does not appear, and there is no evidence to bring home to his minor child knowledge of the fraud, or want of reasonable diligence in discovering it.
We have thus far considered the case as if the jury had found the alleged parol partition proved, and as if the only contest was respecting the east end of the whole tract, the parcel allotted to Jacobs in the division. If there was no parol partition, the defendant cannot protect himself against a recovery of an undivided moiety by any other means than the Statute of Limitations of 1785, or the limitation prescribed to the assertion of trusts by the Act of 1856, unless the jury should believe there was no fraud.to raise a trust, which is hardly possible. The Act of 1785 will protect him in the possession of all which he took into his actual and exclusive possession, after having ousted his co-tenant, and which he held adversely and continuously twenty-one years before the suit was brought, and it will protect him no farther. And the Act of 1856 will protect his possession of the remainder only in case the owner defrauded in the procurement of the title had notice of the fraud five years before this suit was brought, or might have discovered it with reasonable diligence.
We discover nothing else in the record that requires notice, unless it be the fifth point, which was answered correctly, and the answer to the eighth point, to which no just exception can be taken. A parol partition of lands held in common by an equitable title can be made.
Judgment reversed, and a venire de novo awarded.