Kistler's Appeal

[397] The opinion of the court was delivered, May 17th 1873, by Agnew, J. The finding of the master, who had also been the examiner in this case, was against the plaintiffs upon every material fact alleged in their bill, and his clear conclusion was that there was no trust on part of the defendant, on any ground. Exceptions being taken to these findings of fact, the court below, rejecting the report, found the facts for themselves. The opinion of the judge evinces a mind favorably impressed by the evidence in behalf of the plaintiffs. His statement may be regarded, therefore, as exhibiting the entire strength of their case. It is as follows: — “ That in December 1858 the real estate in question was to be sold at sheriff’s sale; that Joseph Saeger, a deaf mute, one of the defendants in the execution, and now one of the plaintiffs to this.bill, was desirous, prior to the sale, to secure the purchase of it, so that it might eventually enure to the benefit of his wife; and in order to effectuate his desire, he called on Mr. German, Christian Pretz and Samuel J. Kistler, and that as the result of his conferences, it was understood that the defendant would so purchase, and that Mrs. John Saeger, an aunt of the plaintiff to this bill, would also assist by furnishing some money. German attended the sale, fully believing that an arrangement existed by which Kistler was to buy; but not finding Kistler at the sheriff’s sale, he bought for the benefit of the plaintiffs, and so informed A. L. Buhe, who was also bidding on the property. German became the purchaser, and signed the conditions of sale ; but before the down-money was paid, at the instance of Joseph Saeger, Kistler was substituted, by an agreement between him and German, at the sheriff’s office, by which Kistler should take and hold the property for the plaintiffs, so that they should have a home ; that if Kistler had not agreed to hold for the plaintiffs’ use, German would not have allowed him to succeed to his purchase ; that the property brought its market value at the sheriff’s sale, and has since greatly appreciated; and that after Kistler received the deed, Joseph Saegar and wife continued in the possession of the property and made important repairs and alterations; that the property was assessed in the name of Maria Saeger, and continued to be assessed in her name until 1864, and that the taxes were paid by the plaintiffs, and that interest on the amount of the purchase-money paid by Kistler, and the interest on the liens were paid by the plaintiffs until the year 1862, which in some receipts is called rent, and the others, interest; that about January 1864 the plaintiff, Joseph Saeger, was notified by Kistler to leave the premises, there having been served a landlord’s notice to quit. The plaintiff surrendered the possession, and subsequently made several demands, by presentation of bills to the defendant, as a compensation for repairs made. “ These facts (says the judge) clearly establish a resulting trust, and the defendant, [398] Samuel J. Kistler, will be treated as a trustee ex maleficio of the plaintiffs.” We cannot assent to this conclusion. These facts establish only a judicial sale in invitum as to Saeger, struck down to German, who paid no money, and that Kistler stepped into his place, paid the bid, and took the deed upon a parol agreement to hold the property for the benefit of the plaintiffs, so that they might have a home. • It is wholly unlike those cases where one receives a conveyance without consideration or purchase, in confidence that he will hold it for another. A sheriff’s sale is made against the will of the defendant, and he has no'control over the direction the title is to take. If no fraud at the sale be practised by the bidder, the defendant in the writ can obtain a restoration of his title only by a contract of repurchase. That such an agreement to repurchase or to redeem, as is found by the judge, is within the Statute of Frauds and Perjuries, and could not be enforced even before the passage of the Act of 22d April 1856, is attested by abundant authority. The case of Fox v. Heffner, 1 W. & S. 372, is a counterpart of this in every respect, if, indeed, it is not stronger, as Morris, who took the place of Patterson at the sheriff’s sale, repeatedly acknowledged the right of Heffner to redeem his land on payment of the money. “ The plaintiff below (said Judge Sergeant) claims the land under a parol agreement between him and Morris* one of the defendants, made at the time when the sheriff’s deed conveyed the land to Morris.” After stating that such an agreement is within the Statute of Frauds and Perjuries of 1772, he says : “It is now-settled by repeated decisions of this court that if one buys the defendant’s property at sheriff’s sale, and verbally agrees to hold it in trust for the defendant, with a right of redemption in the defendant within a limited period, it is a contract resting in parol merely, and not transferring any title in the land. In Kisler v. Kisler, 2 Watts 327, and Robertson v. Robertson, 9 Watts 42, it was determined that unless there is in the transaction more than is-implied from the mere violation of a parol agreement, equity will not decree the purchaser to be a trustee. In Haines v. O’Conner, 10 Watts 320, these cases are recognised, and it is laid down that a purchaser at sheriff’s sale, who has paid his own money, can be held a trustee ex maleficio only on account of the existence of fraud, and when that is the case, he is a trustee for the creditors and the debtor also, unless the debtor be particeps criminis. In the case before us there is no evidence of any collusion or act of fraud on the part of Morris, in the purchase of the property which could make him a trustee ex maleficio, and the fraud which may be alleged to exist in the mere violation of an. agreement is no more than that which attends every violation of an agreement.” This language is so applicable to the case of Kistler, I have transcribed it in lieu of my own. Here Kistler was not present at the sheriff’s sale, and committed no act of [399] fraud, but merely took German’s place at tbe instance of Saeger, and paid his own money upon an agreement to suffer Saeger to redeem. The following cases are to the same effect: Leshey v. Gardner, 3 W. & S. 314; Jackman v. Ringland, 4 Id. 149; Sample v. Coulson, 9 Id. 62. The case is made still stronger against the plaintiffs by the Act of 22d April 1856, the fourth section of which provides that “all declarations or creations of trust or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or be void.” This case is ruled by Barnet v. Dougherty, 8 Casey 371, and Kellum v. Smith, 9 Id. 158. Both in the court below and here, it has been said the trust arose ex maleficio, though nothing of the kind is found in the evidence; yet, as this has led to an inquiry into the conduct of German, who bid off the property at the sale, it will be proper to refer to this aspect of the case. But how can that question arise? The bill is filed against Kistler alone, and is founded wholly on his agreement to hold the property for the plaintiffs. No averment is made of fraud in the purchase at sheriff’s sale, by German or Kistler, or that the property was bought at an undervalue. Neither the judge below, nor the solicitors of the plaintiffs, in -their statements of the case, place it on the ground of fraud in the sale. The facts as proved disclose no fraud. German was under no promise to buy for Saeger, and did not go to the sale for that purpose. He went as a lien-creditor, to protect his own interests, but finding neither Kistler, nor Saeger, nor his friends there, he bid himself, with the intention of securing the property for Saeger, an intention communicated to Saeger immediately after the sale, and fairly carried out. Ruhe, a bidder also, asked him when bidding, .whether he wanted the property for himself. He replied, he wanted it for Joseph Saeger. “Then,” said Ruhe, “I won’t bid any more.” This is German’s own account of the matter. Elisha Forrest testifies that before the property was knocked down, Ger- ' man said he was bidding, and wanted to buy the property for the benefit of Joseph Saeger. This was all he said. No unfairness is imputed to German, and none is alleged against the sale, or is found by the master or the court. The evidence shows, and the court found as one of the facts, that the property brought its market value at the sheriff’s sale. There is nothing in the case, therefore, which would authorize us to shift the position the plaintiffs have assumed in their bill, and to treat this as a trust ex maleficio, arising out of German’s conduct. Clearly no fraud was intended ; his purpose was fair; and no injury was done either to creditors or to the defendant. Whatever supposed benefit he might have derived from the sale, he suffered to pass over to Kistler without consideration and for Saeger’s benefit. The evidence to [400] establish a resulting trust, especially one arising ex maleficio, which is an imputation of fraud, should be clear, explicit and unequivocal : McGinity v. McGinity, 13 P. F. Smith 38 ; Nixon’s Appeal, Id. 279; Lingenfelter v. Richey, 12 Id. 123. Nor is there anything in the conduct of Joseph Saeger which invoices equity in his behalf. He admits that he was insolvent at the time of the sale, and unable to refund the money, and has so continued. Mrs. John Saeger, who was to have assisted him, soon after the sale, refused to do so, and Kistler was obliged to give his own bond, with surety, to pay off her mortgage. Joseph Saeger occupied the property for years, and failed to pay all his rent. When notified by Kistler, as landlord, to quit possession, he did so, and then presented to him a large bill for repairs, materials and taxes, and finally did not file this bill for more than three years after he had surrendered possession, and more than nine years after the sheriff’s sale. Upon a full review of the case, we can discover no equity to support the plaintiffs’ bill. The decree of the Court of Common Pleas is therefore reversed, and the bill of the plaintiffs is dismissed, and they are ordered to pay the costs.