McNinch v. Trego, 73 Pa. 52

McNinch v. Trego

73 Pa. 52 | Pa. | 1873

The opinion of the court was delivered, March 17th 1873, by

Agnew, J.

When this case was here before, the only question was whether under the facts then in evidence a trust arose for E. S. Trego under the purchase by his brother Jacob. These facts, as stated in the opinion of the present Chief Justice, were that the brothers, partners in a foundry, purchased two lots of Dr. Wm. McCleery for $500, to be paid in castings out of the foundry. The purchase-money was so paid. Jacob took possession of the eastern lot, and Eli of the western lot, and Jacob without the knowledge of Eli took the deed in his own name. In answer to a point the court below instructed the jury against the trust, and this court .reversed the judgment on this point alone, being of the opinion that a trust for Eli S. Trego did arise under the circumstances. In the present case a new question is brought up arising on these facts. The original purchase of McCleery was in 1846, and the deed was made to Jacob in February 1850. In March 1850 Jacob conveyed the lot in dispute {inter alia) to his' father, Eli Trego, who with his wife conveyed this lot in April 1850 to Mrs. Elizabeth Trego, wife of Jacob Trego. Jacob was then in declining health: and the partnership was dissolved sometime afterward, perhaps in 1852 or 1853. The precise date is not given, but under the last date, 1851, the accounts of the partners appear to have been balanced, exhibiting in Jacob’s account a balance against him of $3352.63 and against Eli a balance of $3850.61. In Jacob’s account he was *57charged with $500 by Wm. MeOleery, being just the amount of the purchase-money of the two lots, and in the account of Dr. Wm. McCleery, he was credited with the same sum $500 by Jacob Trego. Thus with this charge against Jacob for the purchase-money, the balance against Eli S. Trego in the partnership account was, including subsequent entries, much greater than that against Jacob. Jacob died in June 1853, the deeds were recorded in that month, including the deed from Mr. Eli Trego and wife to Mrs. Elizabeth Trego, wife of Jacob. In the same year Mrs. Trego being in the possession of the lot went on to build upon it. She built a good brick house immediately in sight from Eli S. Trego’s door and of the foundry, where he must have seen it from day to day. He gave no notice of any claim of title on his part during the progress of the building, and suffered Mrs. Trego to retain possession by herself and her tenants until the year 1859, when he brought the first ejectment, in which he obtained judgment by default against her tenant and upon this judgment turned out the tenant, Mrs. Trego having died in 1858. Thus Mrs. Trego being possessed of the legal title adversely to the trust under which Jacob had held, in the first instance, for Eli, was suffered to place valuable improvements on the property and to remain in possession for more than five years after 1853 and more than two years after the passage of the Act oí 22d April 1856, without any acknowledgment on her part of the trust either verbal or written, and indeed without any assertion of the trust by Eli S. Trego. Under these circumstances the plaintiffs in their first point asked the court to charge that the 6th section of the Act of 22d April 1856, there being no acknowledgment of the trust, was a bar to the defendant’s claim by way of a resulting trust. The learned judge in the court below seems to have misconceived the bearing of the point, or else relying too confidently on what he supposed was the decision of this court in the former writ of error, did not charge upon the question of limitation under the 6th section of the Act of 1856, but charged in substance and effect, that if the jury found the existence of the trust under the former opinion of this court, and that Eli S. Trego had gone into possession under it, his equitable title was sufficient and would prevail against the legal title of the plaintiffs. But the error of the learned judge was this, that the point conceded the trust and asked the court to charge that it was barred by the limitation contained in the 6th section of the Act of 1856, because there had been no acknowledgment of the trust by Mrs. Trego as required by that section for more than five years after the legal title had been vested in her, while he refused the instruction and rested the case on the mere existence of the trust. It is true he seems to have thought that the limitation contained in the 6th section was inoperative on the ground that Eli S. Trego had gone into possession: and in this court the charge has been en*58deavored to be supported on the same ground, under the decision in Clark v. Trindle, 2 P. F. Smith 492, and other cases. There is no question of the soundness of these decisions, that when the cestui que trust is in possession during the running of the statute, the limitation does not apply, the possession being a constant assertion and continual claim of the trust. But the plaintiff’s point assumed, and the evidence very clearly established the fact of Mrs. Elizabeth Trego’s possession under the legal title, and Eli S. Trego’s non-claim of the trust during a greater period than five years from her taking possession and even more than five years after she had built her house. To meet this the 6th section of the Act of 1856 requires that the trust shall be acknowledged by writing to subsist, otherwise no right of entry shall accrue or action be maintained to enforce the trust. The court below ought to have affirmed the first point and submitted the facts on which it rested to the decision of the jury.

Judgment reversed, and a venire facias de novo awarded.