11 Pa. 399 | Pa. | 1849
The opinion of this court was delivered by
The pregnant question in this cause is, whether Eliza Wilkins, the plaintiff, was a party to the suit of M’Clurg v. John Wilkins, No. 102 of August Term, 1809, in the Common Pleas of Allegheny county, at the time it was tried, and judgment rendered. John Wilkins died in 1809 — of course very soon after the institution of the suit. The action was allowed to sleep on the record, for some cause or another, until the year 1817, when it was on the trial list for January Term. The following entry was then made on said list in the proper handwriting of Samuel Roberts, Esq., the then President Judge of the district: “ Continued under peremptory rule for trial at next term, and on motion of Mr. Baldwin, Eliza Wilkins, who appears by William Wilkins, her guardian, substituted as defendant.” This entry, by
John Wilkins claimed title to and died seised of the whole of lot No. 202. Before his death, the action of ejectment above adverted to, had been brought against him by M’Clurg, for one-half of the lot; and after his death, Eliza Wilkins was substituted, in manner as above stated, as defendant. She was the next in interest, the lot being devised to her. There was a trial and judgment, as above stated, and upon the execution issued it was docketed as against “ Eliza Wilkins, heir of John Wilkins, deceased;” and the other half of the lot was levied upon, condemned, and sold for the costs
But it is alleged, the receipt was procured by fraud and undue influence. But where, may I not ask, is the evidence of circumvention ? Stewart was a public officer in the discharge of his duty. The plaintiff was of full age, highly connected, living in the midst of friends, able, and no doubt willing, to instruct and advise her; and she herself, no doubt, having received an education, was accustomed to move in society that would enable her to understand her rights. But Robinson was her brother-in-law! Well, that of itself would indicate kindness and friendship, rather than fraud and circumvention. Fraud ought to be proved, either directly, or by the establishment of facts and circumstances, from which it flows by fair legal inference. It is not to be presumed or guessed at. It is a charge easily made, and, after a lapse of thirty years, during which time and change have been throwing mist and oblivion upon transactions originally carried on with looseness, from the very fact of the confidence the parties had in each other, it is sometimes too readily believed.
The plaintiff offered to prove, that William Robinson purchased the lot in dispute as trustee for Eliza Wilkins, and that Bakewell, the alienee of Robinson, and under whom defendants claim, had notice of the trust. The court admit the evidence, but require the evidence of notice to be first given. I cannot say that there was anything wrong in this; because the existence of a secret trust is of no moment against a purchaser for value, without notice of the trust. The plaintiff then alleged, that notice was to be inferred from the fact of Bakewell having taken a judgment-bond from
There is another error assigned as to the interdict upon the counsel ; but it does not arise on the record.
The plaintiff brought a previous action of ejectment against Bakewell for the lot in question in 1835, which was decided by verdict and judgment against her in 1836. This second ejectment was instituted in 1845. The distance from the transactions, upon which time has been so long settling, may make them more obscure than they were in 1836. But we have not been able to perceive any error in law on the part of the court below, either in the progress of the trial, or in their instructions to the jury.
Judgment affirmed.
Rogers, J., dissented.