63 Pa. 38 | Pa. | 1870
The opinion of the court was delivered, January 3d 1870, by
The most important question which arises on this record, the decision of which will dispose of the third, fourth and fifth assignments of error, is, whether there was sufficient evidence either of a resulting trust, or that the deed was a mortgage. Both these things may, no doubt, be proved by oral testimony, but it is equally certain that the evidence ought to be clear, explicit and unequivocal.
If it is true that Thomas McGrinity bought this farm,with four
We come to the examination of the testimony of John Mason, upon which the whole cause rests. The credit of the witness was for the jury; but especially in a case where a trust, or the conversion of an absolute deed into a mortgage is attempted to be made out, by parol evidence, the court and jury exercise the functions of á chancellor, and the evidence, assuming the testimony of the witnesses to be true, ought to be such as would satisfy his conscience. “ The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to declare their effect, and determine whether the claim or the defence is well founded. A chancellor is judge, both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury. And if he does, their verdict is only advisory. It is not conclusive upon him. Whenever, therefore, upon the trial of an ejectment, founded upon an equitable title, the court is of the opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give binding instructions to that effect to the jury Strong, J., in Todd v. Campbell, 8 Casey 252. There was no sufficient evidence in the testimony of Mason, of a resulting trust. That arises from the fact of the payment of the purchase-money, or that it was the money of the alleged cestui que trust which was paid. There was no evidence that Thomas had paid $1400, and borrowed $600 of John, to make up the balance. The evidence was very distinct that John had paid the hand money: indeed, it is not denied, for it is pretended that was part of the $600 which he was to lend. “After the article was drawn,” says the witness, “John put his hand in his pocket-book, and counted down not quite $200, and had not quite enough, and he turned to Thomas and asked him for it, and he got it.” So in regard to the payment made on the execution of the deed.' “John took out his pocket-book, all standing around, and counted .out $1400, paper money.” John executed the mortgage to secure the balance of $400, and the witness adds: “John paid, the balance of money on mortgage.” Moreover, there was not a scintilla of evidence that Thomas ever had in his name so much money. Mason testifies, indeed, that Thomas told him that his money was in Holmes’ “brokers” office, in Pittsburg. But no evidence was given of this most material fact. Here was an index pointing directly to the place where the evidence could be had — evidence of the fact that Thomas had the money there and drew it out at that time, a fact, if proved, worth more than any declaration. The plaintiffs must be presumed to have known what Mason would testify, and it was a pregnant circumstance, that no attempt was made to prove in any other way,
It remains to consider the first two assignments of error, which relate to the record of the Orphans’ Court. That record Was-offered, objected to generally, and admitted for the defendants.
Judgment reversed, and venire facias de novo awarded.