159 Pa. 277 | Pa. | 1893
Opinion by
The parties to this suit died a case stated in the nature of a special verdict for the opinion of the court. The material facts agreed upon are these: William Tanney, the ancestor of these parties, died intestate in 1857. At his death, he was the owner of a lot on which was a frame dwelling house in the city of Pittsburgh. He left a widow, Amelia Tanney, and four children, William, Emma, Julia and Lewis; the whole family occupied the property until 1869. At this time the children had married, and all had left the city; the property was thereafter occupied by tenants, and the rent, with consent of the children, was paid to their mother, Amelia, who died December .10,1881. Up to January 1, 1877, this defendant, Lewis H. Tanney, had expended in improvements, payment of taxes and municipal liens, $500, no part of which was repaid him by his brother and sisters, his cotenants.
William Tanney, one of the plaintiffs, at the same time had also paid out $500 for the same purposes, no part of which was repaid by the sisters. The taxes for 1878 and 1879, amounting to $40.73, not haviug been paid, they were entered as a lien, scire facias issued, judgment had, execution issued, and the property sold at sheriff’s sale. One John J. Lawrence became the ostensible purchaser at a bid of $500, and deed was duly acknowledged to him March 12, 1881. Lewis H. Tanney, the defendant, by agreement, furnished Lawrence the $500 purchase money paid to the sheriff, and Lawrence, conveyed the property to'Lewis, March 24, 1881, who soon after took possession and has since retained it. The $500 was appropriated, to costs
When the money was paid, all the distributees were of full age; William, Emma and Lewis lived at the time in Beaver county, and Julia in Cleveland, Ohio; the money was paid and receipts given at their homes; A. S. & W. S. Moore, who paid the money and took the receipts, were residents of Beaver county. Up until the dates of the receipts, no one of them, except Lewis, had any knowledge of the filing of the liens or the sheriff’s sale of the property. As late as the latter part of 1879, at the solicitation of Lewis, all the parties had executed and delivered a power of attorney to Alderman Leslie, authorizing him to dispossess a delinquent tenant, and relet the property; under the power, he obtained possession and rented to a new tenant June 1, 1880, and thereafter accounted to Lewis for the rents. This action of ejectment was not begun until January 3, 1891, more than nine years after the sheriff’s sale and the payment of the purchase money.
On this statement of facts, it was agreed that the court should enter such judgment “ As in their opinion the law and equities of the case will warrant.”
The court entered judgment for plaintiffs for the undivided three fourths of the land, subject to the payment by each plaintiff to defendant of the sum of $39.46, the share received of the purchase money at sheriff’s sale, with interest from July 19, 1881. From this judgment defendant prosecutes this appeal, assigning for error the judgment for plaintiffs and the refusal of the court to enter judgment for defendant.
If, without collusion, Lawrence had been a purchaser for himself with his own money, and had afterwards conveyed the
The rule, as deduced in Weaver v. Wible, 25 Pa. 270, from the many authorities there cited, is that “ Community of interest produces community of duty.” And further: “ A conveyance to one of several tenants in common, or a deed to one of two devisees of the same land, shall enure to the benefit of all who came in mider the same title, and are holding jointly or in common. Where several persons have a joint or common interest in an estate, it is not to be tolerated that one shall purchase an incumbrance or an outstanding title, and set it up against the rest for the purpose of depriving them of their interests. Chancellor Kent with great truth remarked, ‘ that such proceeding would be repugnant to a sense of refined and accurate justice, and would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other’s claim which the relationship of the parties created.’ All that can be demanded is contribution from each to the expense of any purchase which releases the common interest from embarrassment.” And, as is said in Chorpenning’s Appeal, 32 Pa. 315, “the rule is inflexible, without regard to the consideration paid, or the honesty of intent. Public policy requires this, not only as a shield to the parties represented, but as a guard against temptation on part of representatives.”
The case before us is stronger on its facts against the defendant than the one cited, for Lewis Tanney was himself the purchaser at the sale for taxes, while in Meyer’s Appeal the purchaser was a stranger, who, o'f his own volition, had bought and paid the consideration money out of his own pocket. That the sheriff here made the sale for taxes on a municipal lieu, in no way changes the application of the principle. The sale resulted from the joint default of all the tenants in common; it was the duty of all to share equally in the payment of taxes; but Lewis had immediate-charge of the common property, for he procured the power of attorney for Leslie, and to him Leslie accounted for the rents up to the date of the sheriff’s sale; when he purchased with hfs own money, the purchase enured to the common benefit; that is, it discharged the lien for taxes, but their interests were not divested by the sale unless they ratified it. What we have said proceeds on the presumption the law raises,— if Lewis had been openly the purchaser at sheriff’s sale and had taken the deed in his own name, the interests in the land would have remained the same, and the possession would have been constructively in all as tenants in common, notwithstanding the naked legal title was in Lewis.
Nor will the statute of limitations of the 22d of April, 1856, under the facts of record, avail the defendant. That act says: “ No right of entry shall accrue or action be maintained to enforce any implied or resulting trust as to realty, but within five years after such equity or trust accrued.” These plaintiffs are not seeking to enforce an implied or resulting trust; they are demanding possession of the undivided three fourths of their land from which defendant wrongfully keeps them. In reply, defendant admits they once had title, but alleges, by the sheriff’s deed their interest was divested and vested in him,
They answer that, as to them, the sheriff’s deed is a nullity, their relation as tenants in common was not changed by it, for the policy of the law forbids such an attempt by Lewis to oust his cotenants from the common inheritance; especially in view of the fact, that, at the date of the sheriff’s sale, he was in the active management of the property, to whom Leslie accounted for rents and expenditures. They claim no benefit from his sheriff’s deed, and aver that it cannot affect their right, when they elect to avoid it. In this they are correct. If Lewis had purchased in his own name an outstanding better title to the common property, he would have held it as trustee for all, and it would have been so decreed, on reimbursing him their respective shares of his outlay. But he purchased no outstanding title in this case. The legal title and possession in all the tenants were indisputable from the death of the father in 1857 until the acknowledgment of the sheriff’s deed in 1881; each, during that time, was, with reference to the common property, constructively trustee for the others; neither could, by a collusive arrangement with a stranger, wrest from the others their interests and appropriate the whole; the colorable sheriff’s sale, permitted, if not prompted, by Lewis, can be no more effective for that purpose, than if he had by his voluntary deed conveyed the whole to Lawrence, and then had taken a reconveyance to himself. Nothing short of an unequivocal, hostile possession under the sheriff's deed for twenty-one years would have been effectual to bar the right of entry of the cotenants under the common title which came to them from their father in 1857. It is not a resulting trust. An implied or resulting trust is where land is purchased in the name of one person, and the money paid by another; or where a purchase is made by a trustee of land in his own name, with trust money; or where a purchase of land is made by a partner in his own name with partnership funds; or where a conveyance has been obtained by fraud; these, and cases of like character, come under the head of implied or resulting trusts.
Here, one being privy in estate legal and equitable with three
Nor was there imposed upon them the duty of inquiry before accepting the money, for there was nothing to excite suspicion or to stimulate inquiry. The purchase by the brother was concealed by a method most likely to lure to inaction ; a public sale to a stranger, on an execution at the foot of a debt which they knew they owed, and which had been judicially ascertained, might well move them to the conviction that their property had passed to a stranger. To say they could have discovered the facts by reasonable diligence is of no weight in view of the circumstances. As is remarked in Maul v. Rider, 59 Pa. 167, a case in some of its features resembling the one before us: “ There are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful.” As they did not know the material fact here, that Lewis was the purchaser at sheriff’s sale, when they accepted the money, they are not estopped from now asserting their right.
As to the alleged hardship of imposing upon one tenant in common the care of the common property and expenditure of money in excess of his receipts, for the benefit of his cotenants who live remote from it, and are either unable or unwilling to contribute their share, and then prohibiting him from being a bidder to protect his own interests, such hardship is more apparent than real. The common property is chargeable with
There is a fact disclosed in this case, not by any means exceptional, to which we call the attention of the bar. Care and accuracy in the preparation of paper books is as much a professional duty, as pointed and logical presentation of the client’s cause. While not seldom many authorities are cited which have little or no bearing on the questions to be decided, still our duty requires of us an examination of all those which counsel point out to us as sustaining his argument. In view of this, he should correctly give us the volume, page and names of the parties in each citation. As an illustration of the unnecessary labor imposed by careless citation, in the appellee’s paper book eleven cases are cited, as ruling that a tenant in common is prohibited by the policy of the law from acquiring, as against his cotenants, an antagonistic title. The third case cited is James v. Conway, 4 Yeates, 111. There is no such case in 4 Yeates. We turned to the volume and page, and found Rodgers v. Gibson, a case ruling that a judgment creditor is not within the protection of the recording acts; we then turned to the names of parties in the table of cases given in the beginning of the volume, and find no case of James v. Conway; then to the index at the end of the book, and found, after careful examination, under the head of “ Limitation of Actions,” what occurred to us as a possible reference, bearing on this case, “ That in case of fraud the statute of limitations only commences to run from the time the right of action accrues; ” that referred to page 109; on turning to that page, we find a case of Jones v. Rees’s Executors, one of whom is named Conoway, ruling that where a free negro, ignorant of his freedom, had in the early days of the commonwealth been sold as a slave, his right of action for his services, against those who fraudulently
The judgment is affirmed and appeal dismissed at costs of appellant.