5 Watts 27 | Pa. | 1836
The opinion of the court was delivered by
If the facts be as it would appear by the evidence they are, that a majority of the- trustees to whom the care of the concerns of the bank was committed, attended the sale of a portion of the property of the bank, and, in order to prevent its being disposed of at- an undervalue, Childs, the acting trustee, procured St John to bid for them, and furnished him with money for the purpose, and St John undertook the trust, purchased the property and paid for it with that money, and took the deed in his own name, he certainly became thereby a trustee for "the bank, the equitable title remained in them, and was bound by the plaintiff’s judgment. That such trust in real estate may be established by parol evidence, was settled in German’s Lessee v. Gabbald, 3 Binn. 302, and is confirmed by subsequent decisions ; and proof of an undertaking and employment to execute a trust, makes quite as strong a case as that of any confession or declaration. On the evidence of Mr Childs, the money must be deemed the money of the bank, for he says that he, as acting trustee, employed St John, and gave him the money, and though at the time he advanced the money out of his own pocket, he did it for the bank, and soon after charged it to them;. so that, in effect, it was the bank’s money, loaned to them by Childs. The act of Childs, in relation to the purchase, was afterwards ratified by all who had a right to control it. The-trustees claimed the property, and articled to sell it to Beckel; Childs concurred in that sale, and swears that he represented the bank intime purchase. His advertisement was an act in his individual capacity, and might have been a good reason for objecting to a confirmation of the sheriff’s sale, on the part of the plaintiff, or any other person that was injured by it. If the sale had been set aside, the property would have remained in the bank; but no objection was made to it; St John affirmed it, and received a deed under it, in pursuance of his purchase as agent and trustee of the bank. Holding the deed as such, he could not controvert their title, but was bound to surrender up the property when called on by the trustees. If so, the property was bound by the judgment, and ought to go towards payment of the debts of the bank, and not to St John or his representatives, who never paid a dollar for it.
Most of the positions laid down by the court below seem to be in accordance with these principles, but in some of their material features, they are so mingled up with extraneous matter, as to be exceedingly vague and obscure, and to the first of the plaintiff’s propositions, which embodies the merits of his case, the charge of the eourt contains no distinct answer. The plaintiff’s first proposition was, “that the act of frauds and perjuries in Pennsylvania does not prevent a declaration of trust from being made by parol, and there
“ It appears from this summary, that Mr Childs declares he had no authority from the board of trustees of the banking company, previous to the sale by the sheriff, to purchase, or employ any one else to purchase, the property in trust for the bank ; that he never told St John that he had such authority, and that the board of trustees never sanctioned the purchase, subsequent to the sale; that he nowhere states he has ever received from the company, or from any other person, any part of the purchase money. It is contended, on behalf of the defendants, that the facts detailed by Mr Childs, being deficient in these essential particulars, are not sufficient to raise a trust in favour of the bank, in the property purchased at the sale by St John.”
“You will recollect that the claim of its being in trust, is not made in favour of Mr Childs, but in favour of the bank ; and not considering Mr Childs as trustee, it would appear to me that, under the circumstances just mentioned, connected with the fact that there is no proof that'St John ever confessed .that he bought the property in trust for the bank, the mere circumstance of his having been previously requested to do so, and .of Mr Childs afterwards advancing the money out of hisown pocket to pay for it, whatever equity itmight have raised in favour of Mr Childs, if he had made a claim on his own behalf, subsequently to the sale, can make no difference in' this principle. And as to any interest Mr Childs might have claimed, it would appear to me, that if he gave notice at the sheriff’s sale that the house belonged to him, and not to the bank, and fye thereby deterred others from bidding, his afterwards attempting to purchase would be fraudulent; the subsequent transfer of his claim to the bank would be void, and could not affect the right of the legal owner of the property.”
“ But these sentiments and opinions have relation to Mr Childs acting as an individual, and not as an agent of the bank. The case will wear a different aspect, if the facts stated by Mr Childs are established to your entire satisfaction, and you are convinced that he acted altogether as a trustee. It is not enough that he was a trustee, but he must have acted as a trustee, and advanced the money as a trustee, and in that case, it would be considered as the money of the bank, whether regarded in the light of a loan or a gift, and the right of the bank would depend, not on any transfer to them by Mr Childs, but on the resulting trust in their favour.”
But was there a resulting trust in their favour, if the facts stated are true ?. This question was a material one to the plaintiff. Instead of answering it expressly in the affirmative, as they ought to have done, the court say the right of the bank depends on the re-
The plaintiff excepted to the evidence of the proceeding by St John, under the landlord and tenant act, against David Cassel and another, to recover from them the possession of the premises, after he had obtained his sheriff’s deed. I am unable to perceive what connection this proceeding had with the issue in the present case. It could not affect the right of the bank, as cestui que trust, whether St John succeeded in a proceeding against the tenants or not. If he were a trustee, he continued to be so whether he occupied by tenants or by himself. Holding the legal title, he was entitled to the possession against all but the bank, and they were not parties to the proceeding, nor does it appear they had notice of it, or could become parties. If so, it was res inter alios acta, and irrelevant to the case.
Judgment reversed, and a venire facias de novo awarded.