1 Foster 369 | Pa. | 1873
The opinion of the court was delivered, October 27th 1873, by
Upon this writ of error we have nothing to do with the competency of the witness, Mrs. Wolford. Her testimony was admitted, and forms part of the evidence. Had it been rejected, non constat that the defendant would not have strengthened his case by other testimony. He might have proved aliunde that she had a deed for the property, or he might have produced and offered the deed itself. He had a perfect right when the evidence was in, to rely upon it. Her testimony alone, if believed by the jury^-and there was no contradiction of it — showed a clear case of fraud on the part of Herrington within our late decisions of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 Id. 453. She had a claim to the land in her own right by an unrecorded deed — whether good or bad, conveying a good title or not, is unimportant — and these cases settle, that where one having any interest is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter of the confidence is such a fraud, as will convert the purchaser into a trustee ex maleficio.
But we are of opinion, also, that if the testimony of John Wightman — a clearly competent witness, admitted without objection — is believed, it was sufficient to make Herrington a trustee ex maleficio, independent of any interest in the land in Mrs. Wolford. He testified that at the time of the verbal contract Herrington distinctly agreed that he would execute a writing declaring the trust before he bid the property off. At the time of the sale he did not deny but evaded the performance of this promise, by saying he would get his lawyer to write it after the bidding. It was written, and then he refused until the deed was acknowledged. In one of the earliest cases on this subject in Pennsylvania, Thomson’s Lessee v. White, 1 Dali. 447, decided in 1789, where a husband and wife, having no children, conveyed the estate of the wife to a stranger, who reconveyed to them as joint tenants in fee, under a parol agreement between the husband and wife that the husband should settle the fee upon the wife’s heirs, and the husband died without making the settlement, it was held that the parol evidence was admissible to establish the agreement. Mr. Chief Justice McKean said: “ Where a party is drawn in by assurances and promises to execute a deed, to enter into a marriage, or to do any other act, and it is stipulated that the treaty or agreement should be reduced to writing, although this should not be
Judgment reversed, and a venire facias de novo awarded.