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in which we sustained a compulsory nonsuit. ness, and never mention the name of Sutton There the prosecutor was simply informed by again for reference or for any other purpose, if the word of a third person, that he had seen the he, the witness, would induce Sutton to take prosecutor's gauntlets in possession of the plain- this course. tiff; while here the plaintiff himself not only The assignments of error are all sustained admits that he took the goods, and took them except the second and sixth. secretly, but produced them from his pocket

Judgment reversed. and delivered them to the prosecutor on demand of the latter, who immediately charged

HOFF'S APPEAL. him with theft, and sent for an officer to arrest him.

A mechanic's claim for repairs, alterations and additions, Miller, the plaintiff's witness, testified that

is a lien only from filing, and does not relate back of Sutton charged the plaintiff with theft in the the filing. Therefore, when the terre-tenant dies before first instance, and that Anderson at first denied

the same is filed, the mechanic claimant has no pri.

ority, and his claim comes in pro rata with the other having them, but after being told that Richard

debts of decedent not of record. son had told Sutton all about it, admitted that he had them and delivered them to Sutton.

Appeal from the decree of the Court of ComAnderson's allegation, on the witness stand. | mon Pleas, No. 2, of Philadelphia county. tbat he took the samples the day before he was Alfred Vezin died April 15, 1881, and the fund discharged, does not help his case in the least, in the court below was derived by a sheriff's as he does not say that he told that to Mr. Sut sale of certain of his real estate under a judgton, and he does not pretend that he had a gen- ment on a mortgage. The sale was made Janeral authority to take samples for any purpose. / uary 3, 1882. The appellant's lien for repairs His statement that he took the samples to sell was not filed until after Vezin's death, although goods by, is emphatically disproved by his own the work was done before that event, and the testimony, that he used them with a customer lien was filed within the six months from the of the house for the very purpose of preventing completion of the work. The auditor and court sales. It is not at all necessary to recur to Sut- below awarded the balance of the fund, after ton's testimony to make out a case of probable payment of the mortgage judgment, to the cause. The burden of proving want of probable administrator of Vezin, which is assigned for cause rested upon Anderson, and he must also error. prove malice: Kirkpatrick v. Kirkpatrick, 3 For appellants, Jos. C. Ferguson, Esq. Wright, 288; Dietz v. Langfitt, 13 P. F. Smith,

Contra, Messrs. George W. Shoemaker, Wm. 234; Bernar v. Dunlap, 13 Norris, 329.

H. Staake and R. H. Hinckley. The burden of proving probable cause was not shifted to the defendant in this case, because

PER CURIAM. Filed February 5, 1883. the plaintiff established it by his own testimony, In this distribution the appellant claims under and when this is the case it is the clear duty of an alleged mechanic's lien for repairs, alterathe court to so instruct the jury. This is held tions and additions to the building sold at sherin the cases of Dietz v. Langfitt and Bernar v. iff's sale. The Act of May 1, 1861, Pur. Dig., Dunlap, supra.

| 1028, pl. 20, applicable to such claims in the city We think the learned judge was in error in of Philadelphia, expressly declares they sball the matter covered by the fourth assignment. not be a lieu "except from the time of filing the It is certain Anderson did not testify that he claim." The appellant's claim was not filed in had a right to the possession of the samples, or the lifetime of the owner of the building. When that in addition to his duties as porter he took he died it was not of record, and no lien existed samples and sold goods at night. The state- by virtue of the act cited. By his death it bement of the learned judge to that effect would came a lien like other debts of his not of record. tend to mislead the jury, and .was hence er | It was then of no higher grade. It bad no roneous. Nor do we think there was any preference over any other of his debts. The conflicting testimony as to any material facts filing of the claim afterwards gave no preference. of the case. Upon the testimony of the plain-The claim, which under the Act of 1861 was no tiff and his witness, it is quite clear to us that lien until filed, could not create a lein which probable cause for the prosecution was fully would relate back of the filing wbether the established.

owner of the building was living or dead when The abandonment of the prosecution was en- | it was filed. tirely explained by Vansant, who said that Decree affirmed and appeal dismissed at the Anderson promised he would go about his busi- costs of the appellants.

Pittsburgh Legal Journal.

Supreme Court, Penn'a.

John Herron, J. H. Mitchell, trustees, C. A.

Armstrong, William Roseburg, Robert MarESTABLISHED 1853.

shall, J. H. Mitchell, William Stevenson, John E. Y. BRECK, : : : : Editor. W. Chalfant and C. B. Herron held as tenants

in common seven hundred and seventy-five N. S., Vol. XIII. I

No. 46.

acres of coal in South Fayette township, Alle

gheny county, legal title to wbich was in C. H. PITTSBURGH, PA., JUNE 27, 1883.

Armstrong, James H. Mitchell and C. H. Spang.

Some of these parties desiring to sell, it was agreed verbally between John W. Chalfant, C. B. Herron, Samuel Watters, the decedent,

Robert Marshall and C. H. Armstrong, that MCMURRAY'S APPEAL.

Chalfant and Herron should purchase the propLands held in trust for A., B., C., D., E. and others, as

erty for them in the following proportions : tenants in common, was about to be sold by the trus John W. Chalfant, one-fourth interest ; C. B. tees. A., B., C., D. and E. verbally agreed together to Herron, one-fourth; C. H. Armstrong, onepurchase it. The trustees conveyed to A, and B., re

fourth ; Samuel Watters, one-eighth, and Robert ceiving in payment nine bonds and mortgages, exe

Marshall, one-eighth, for the price of $155,162.50, cuted by A. and B. alone, for the whole purchase money, payable in six annual installments, each mort

to be paid in six annual payments, the deed to gage covering the whole land. The bonds and mort be made to Chalfant and Herron. On the 1st of gages were assigned by the trustees to the cestuis que | January. 1873, after this verbal agreement was trust entitled to them. C., D. and E, each received one

made, C. H. Armstrong, Janies H. Mitchell and bond and mortgage. It was also verbally agreed that A., B, and C. should each pay one-fourth of the pur

C. H. Spang executed and delivered to Chalfant chase money, and D. and E, each one-eighth and and Herron a deed for the property, and Chalshould each have a proportionate interest in the land;

fant and Herron executed and delivered to them that C., D, and E. should surrender to A. and B. the

nine separate bonds and mortgages, payable in bonds and mortgages assigned to them, in part pay. ment of their share of the purchase money and should

six annual payments, aggregating $143,226.90, pay the balance of their shares to A. and B. in six to secure the payment of the purchase money annual installments, and that each upon payment of thereof. This sum. with the interest of Chalfant his share of the purchase money should receive a deed

and Herron in the property, making the total from A. and B. for his interest as tenant in common. D, surrendered his bond and mortgage to A. and B.

purchase money $155,162.50. These bonds and when he received them from the trustees, and paid mortgages were in amounts representing the to them, when it became due, the first installment of different interests of the parties in the property the balance of the purchase money to be paid by him,

and one representing such interest was assigned and in a short time afterwards made a further payment on account, and before the second installment

to each of them. It was part of the verbal agreebecame due died. E, had surrendered his bond and ment between Chalfant and Herron and the mortgage, paid the balance of his share of the purchase parties for whom they purchased that they were money and received a deed for his interest in the la

to release their mortgages on the property, pay Upon distribution of D.'s estate in the Orphans' Court, A. and B, claimed the balance of D.'s share of the pupi

the balance of the purchase money due by them chase money remaining unpaid. This was contested in six annual payments, and when that was by D.'s heirs. E. was examined, under objection, as a paid receive deeds from Chalfant and Herron witness to prove the verbal agreement.

for their interests. Samuel Watters, the deceHeld, that these facts created a valid trust in favor of D., not within the statute of frauds, which could be en

dent, had assigned and delivered to bim one forced by him or his heirs against A. and B.

of these bonds and mortgages for the sum of Where the cestui que trust can compel the specific per- $11,935.56. The mortgage has not been satisfied

formance by the trustee of the contract creating the on the record, but it and the accompanying trust, it can be enforced by the trustee against him.

bond are in the possession of Chalfant and One not directly interested in the case before the court

Herron. is a competent witness, although he is directly interested in the question involved.

With this exception and the exception of the The Orphans' Court in the settlement and distribution last payment of $7,957 due on one of the mortof the estates of decedents has undoubted jurisdiction

gages, they are all satisfied in full on the record. to decide upon the claims of creditors.

On the 19th day of May, 1882, the decedent's Appeal from the decree of the Orphans' Court administrator issued a writ of scire facias in of Allegheny county by beirs of Samuel Wat the Common Pleas Court, No. 1, Allegheny ters, deceased.

county, on the said mortgage. Messrs. ChalThe facts are fully stated in the statement fant and Herron filed an affidavit of defense to and opinion of the lower court.

this action in which they set up the facts as Samuel Watters, the decedent, C. H. Spang, above stated, inter alia, and aver that they are

ready and willing on the payment of the bal. money due on the whole property by their ance of the purchase money and the satisfaction amount, and would be a payment of that much of the mortgage to convey to the legal repre- of the purchase money. sentatives or the heirs of the decedent the un- The legal effect of this agreement was that divided one-eighth of said property.

the mortgage of the decedent was applied to the The decedent in his lifetime made the follow- payment pro tanto of the purchase money of ing payments to Chalfant and Herron, on ac- his interest in the property, at the time the title count of his indebtedness on the property : was acquired by Chalfont and Herron. It is January 2, 1874............

...............$1,500 true the mortgage assigned to the decedent was March

200 not satisfied on the record, but it and the acApril

250 companing bond are in the possession of ChalTotal payments.......

.................$2,750 fant and Herron, the mortgagors. And whilst The purchase money for his one-eighth in- there is no direct evidence that they were deterest was $19,395.31 ; the amount of the mort- | livered to them by bim, there can be no hesitagage assigned to him was $11,935.62, which left tion in coming to the conclusion from all the the balance of $7,459,69 of purchase money due circumstances of the case, that the decedent on his interest. After deducting the cash pay- | surrendered them as evidence of their payment. ments made by the decedent, and charging him And as the mortgage under the agreement was with his share of the expenses of the trust and paid and should have been satisfied, the fact cash paid for taxes, there was due to Chalfant that it was not is not material. Equity will and Herron, including interest to April 10, 1882, consider that as done which ought to be done. $8,193.77, for which a claim is presented by

This case then seems to fall within the first them.

| class of resulting trusts. Objections are made by the next of kin to this It would appear, also, to be within the second claim, on the ground that as it is not founded class. on a written agreement, it is within the statute The decedent had an interest in this property of frauds, and cannot be enforced.

| at the time Chalfant and Herron purchased it.

He was induced to rely on their promises made Opinion by OVER, J.

before the purchase by them, that they would The claim of Messrs. Chalfant and Herron purchase for his benefit. Can there be any being for the purchase money of real estate, and doubt, that if they denied the confidence they being founded on a verbal contract, under the would be held to be trustees ex maleficio. statute of frauds, cannot be allowed, unless | Then as Chalfant and Herron are bound by there was a resulting trust in the property in the contract, it must be mutually binding, and favor of the decedent. An examination of the it can be enforced against the decedent's legal authorities shows this is raised in two ways. representatives.

(1.) When the title is taken in the name of It was contended by counsel for the next of one person, while the purchase money is paid kin, that the evidence of Robert Marshall, the when the title is acquired, in whole or in part principal witness for the claimants, should be by another, there is a resulting trust in favor of excluded, on the ground that he was an interthe latter: Edwards v. Edwards, 3 Wright, ested party and therefore incompetent as a wit369; Bennett v. Dougherty, 32 Pa. St., 371. ness. Chalfant and Herron had conveyed to

(2.) When one having an interest in land is him by deed with special covenant against ininduced to confide in the verbal promise of cunbrances an undivided eighth of the propanother, that he will purchase it for the benefit erty. As the mortgage assigned to the decedent of the former, and in consequence the other is covered the whole of this property, it may be allowed to obtain the legal title, his denial of under the authority of Kinson v. Keck, 8 W. & the confidence is such a fraud as will make him S., 16, that he was inconi petent as a witness, a trustee ex maleficio: Woodford v. Harring and that his testimony should be excluded had ton, 74 Pa. St., 311, and 86 Id. 39.

objections been made to his examination on By the terms of the purchase of this property that ground in time. there was no cash to be paid at the time the deed This cause came on for hearing first on the was delivered. But under the verbal agreement 25th day of June, 1880, when counsel for the between Chalfant and Herron and the parties claimants made a full statement of the facts of for whom they purchased, the mortgages re- the case. At the instance of counsel for next ceived by them for their interests were to be of kin, the hearing was continued to give time released. The release of the mortgages held by to investigate the claim. It came on again on them would reduce the amount of the purchase the 17th of April, 1882, and Robert Marshall was the first witness called and examined by but to protect the cestui que trust from the the claimants, and was cross-examined by coun- trustee, and a vendor cannot use it to enforce a sel for next of kin. The only objection then parol agreement for the purchase of land. made was to the competency of his evidence. There was no money paid by Watters to the Mr. Marshall was again examined on the 19th appellees before or at the time of their purchase, of July, 1882, without objection being made to and therefore there was no resulting trust created his competency, and on that day, after the in his favor. claimants closed their case, the first objections Bamet v. Dougherty, 8 Casey, 371. were made to his competency as a witness. Nixon's Appeal, 63 Pa. St., 279. The next of kin krew, or could have known The testimony at most establishes a breach of by the exercise of ordinary diligence, at the a parol contract on the part of Watters, and the time Mr. Marshall was examined as a witness, appellees' remedy is in the Common Pleas. the facts which it was claimed rendered him

1 Meason r. Kaine, 63 Pa. St., 335. incompetent. This being the case, the objec

Contra, Messrs. W. W. Thomson and W. L. tion was not made in time, and the exclusion of his evidence is discretionary with the court:

Chalfant. Robinson v. Snyder, 25 Pa. St., 203; Greenleaf's

The Orphans' Court has full jurisdiction to Evidence, Sec. 421. If there was any contliet |

decide upon the claim of the appellees. of testimony or any doubts as to the truth of his Kitteras' Estate, 5 Harris, 422-3. evidence, it should perhaps be excluded. It is

Shallenberger's Appeal, 9 Id., 341.

Bull's Appeal, 12 Id., 288. uncontradicted and fully corroborated, and as

Whitesides v. Whitesides, 8 Id., 474. its exclusion might defeat a just claim, it should Ashford 2. Ewing, 1 Casey, 215. not be stricken out.

Black's Ex'rs v. Black's Ex’rs, 10 Id., 356-7.

Mussleman's Appeal, 15 P. F. Smith, 489. The errors assigned were, to the admission of

Dundas' Appeal, 23 Id., 479, 480. Robert Marshall's testimony, and to finding

Otterson v. Gallagher, 7 Norris, 357. that the fates created a resulting trust in favor Williamson's Appeal, 13 Id., 236. of Watters, not within the statute of frauds, Lex's Appeal, 1 Outerbridge, 292-3. which could be enforced by him against the Marshall was not interested. The bond and appellees, and that the verbal agreement was mortgage of Chalfant and Herron, assigned to therefore mutually binding and enforceable. Watters, were in their possession, and had been

produced and given in evidence by them at the For appellants, Messrs. Thomas C. Lazear and

trial as their property. This was prima facie T. Walter Day.

evidence that they were paid, and sufficient. Marshall was incompetent on the ground of

2 Jones on Mortgages, 2 913. interest, as he owned an undivided eighth of the 1 Hilliard on Mortgages, 504. property which was covered by the mortgage 2 Wharton on Evidence, & 1362.

2 Greenleaf on Evidence, 527. of Chalfant and Herron, assigned to Samuel

Smith v. Smith, 15 N. H., 56, 57. Watters.

Levy v. Merrill, 52 Howards P. & R. (N. Y.), 360. Kuester v. Keck, 8 W. & S., 16.

Richardson and Wife v. City of Cambridge, 2 Allen Meason v. Kaine, 63 Pa. St., 335.

R., 121.
The objection to his testimony was made in Crocker v. Thompson, 3 Met., 231.

Flower v. Einwood, 66 Ill., 444. time and it should have been excluded from

Ormsby v. Barr, 21 Mich., 481. consideration.

Johnston v. Natuns, 26 Miss., 147, 151. Shurtlep v. Willard, 19 Pick., 202.

Succession of John C. Norton, 18 La Ann'l R., 36. Verths v. Hagge, 8 Iowa, 163,

McGee v, Provitz., 9 Met., 551. Lewis v. Morse, 20 Conn., 211.

Baring v. Clark, 19 Pick., 220, 227. Jacobs v. Layburn, 11 M. & W., 685.

Wilson v. Goodin, 1 Wright (0.), 219. Wharton on Evidence, Sec., 393.

Connelly v. McKean, 14 P. F. Smith, 113, 118-9. Armstrong v. Graham, 4 Barr, 142.

At the time the first installment of the bond If the appellees have any claim, their remedy and mortgage assigned to Watters became due, is by action in the Court of Common Pleas and within a short time afterwards, Watters against Watters' representatives for damages

paid to the appellees $2,750. This is evidence for the breach of the parol contract.

that the mortgage was paid. Meason v. Kaine, 63 Pa. St., 335.

Where a creditor holding an obligation of his Meason v. Kaine, 67 Id., 126. Dumars i. Miller, 34 Id., 319.

debtor is shown to have given to his debtor a Hertzog v. Hertzog, 3 Id., 418.

promissory note or other obligation for the payThe proviso to the statute of frauds, permitting ment of money, after the date at which the oblia parol agreement to establish a resulting trust, gation held by him became due, there is, in the was never placed there to be used by a trustee, I absence of anything, to show what was the con

sideration of the latter obligation, a legal pre

Gibson v. Winslow, 10 Wright, 384. sumption that no previous indebtedness existed

Plumer v. Crary & Reed, 2 Id., 48.

Mercy v. Herrick, 6 Harris, 128. at the time of making the latter obligation.

McCullough v. Cowher, 5 W. & S., 427. Abbott's Trial Evidence, p. 208, ê 20.

Brown v. Dysinger, 1 Rawle, 408. Freest v, Bloomingdale, 5 Denio, 304-5.

Stewart v. Brown, 2 S. & R., 461. Dugnid v. Ogelvie, 3 E. D. Smith, 527.

Leisering v. Black, 5 Watts, 306. Calaway v. Heana, 1 Houston, Del. R., 607.

These authorities show that the verbal agreeThe mortgage being paid its lien was gone

ment in this case, not coming within the statute and Marshall not interested.

of frauds, can be proven by parol evidence, and The transaction out of which a resulting or

could be enforced by Watters against Chalfant constructive trust arises may be proved by parol

and Herron. If binding on Chalfaut and Herevidence.

ron, it must also be binding on Watters and bis Perry on Trusts, 2 137. Lloyd v. Carter, 5 Harris, 216.

estate. Peoples v. Reading, 8 S. & R., 484.

“If a contract is not within the statute of Jackman v. Ringland, 4 W. & S., 150.

frauds, there is no reason why a purchaser could Strimpfler v. Roberts, 6 H., 295.

not be held to pay what he had promised; or, Wallace v. Duffield, 2 S. & R., 524. Lynch v. Cox, 11 H., 269,

in other words, why the price he undertook to The facts found in this case show a resulting

pay is not the measure of damages for his breach

of his contract." trust in favor of Samuel Watters.

Tripp v. Bishop, 6 P. F. Smith, 427. A resulting trust arises where the title is taken

A vendor of lands by parol sale, within the in the name of one person, while the consid

statute of frauds, cannot recover the price from eration money is paid in whole or in part by

the vendee, because the vendee has no remedy another.

by which he can com pel the vendor to convey, Perry on Trusts, vol. 1., 2., 126, 132. Edwards v. Edwards, 3 Wright, 369.

and there is therefore no mutuality in the conChadwick v. Felt, 11 Casey, 307.

tract. Equity will not enforce a contract by Beck v. Graybill, 4 Id., 66.

which both parties are not bound. Jackman v. Ringland, 4 W. & S., 150.

Wilson v. Clark, 1 W. & S., 555. Stewart v. Brown, 28. & R., 461.

Sands, Herdi & Co, v. Arthur, 3 Norris, 481. Strimpfler v. Roberts, 6 Harris, 295.

Meason v. Kaine, 13 P. F. Smith, 339, 310; same Wallace v. Duffeld, 2 S. & R., 524.

case, 17 Id. 131. Lloyd v. Carter, 5 Harris, 521.

Bodine v. Gladding, 9 Harris, 53.
Lynch v. Cox, 11 Id., 269.
Mercy v. Herrick, 6 Id., 128, 129.

Where the reason of the law ceases, the law When an original verbal agreement between ceases. If Samuel Watters' heirs could compel two persons to make a joint purchase is clearly

a conveyance of one-eighth of this property, acproved, although no part of the hand money cording to his agreement with Chalfant and was actually paid at the time by him, whose | Herron, there is no reason why his estate should name is not in the articles or deed, yet the sub- | not be compelled to comply with his part of the sequent payment of his share in fulfillment of agreement, and pay for it. the bargain will relate back to the original

Opinion by SHARSWOOD, C.J. Filed Decemagreement, and attach to the land as a resulting

8 ber 30, 1882. trust.

The affidavits of defense of Chalfant and HerNixon's Appeal, 13 P. F. Smith, 282, Chadwick v. Felt, 11 Casey, 307-8.

ron, to the scire facias on the Watters' mortgage, Mercy v. Herrick, 6 Harris, 129.

were rejected by the learned judge when offered Where one having an interest in land is in- in evidence, and we cannot assume that they duced by the verbal promise of another that he were considered by him. The statement of will purchase it for the benefit of the former, them in the opinion, rightly interpreted, is only and in pursuance of this allows him to become as to the nature of their claim. There was suffithe holder of the legal title, a subsequent denial cient to support them in the testimony of Robert by the latter is such a fraud as will convert the Marshall. The main contention here has been purchaser into a trustee ex maleficio, and he as to the competency of this witness and the will be compelled to convey according to his competency of his evidence. The learned judge verbal agreement.

below appeared to think that he was interested, Wolfert v. Harrington, 24 P. F. Smith, 311, and and Watters being dead, was not a witness un5 Norris, 39, 43, 44.

der the Act of 1869, but thought that the objecLong v. Perdue, 2 Norris, 217.

tion came too late. It is not necessary to conSeachrist's Appeal, 16 P. F. Smith, 240-1.

sider whether he was right in this, for we all Boynton v. Housler, 23 Id., 458. Beegle v. Wentz, 5 Id., 369.

I think that Robert Marshall was a competent

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