Wolford v. Herrington

Mr. Justice Sharswood delivered the opinion of the court, When this cause was in this court before on a former ejectment (24 P. F. Smith 311), there was no evidence of Mrs. Wolford’s title to the land except her own parole testimony. The deed was not in evidence. The majority of the court thought, however, that there was evidence which ought to have gone to the jury that she had a bona fide claim — whether her title was good or bad — and if she had such a claim the case fell within the principle of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 Id. 453. All after this in the opinion filed in that case was certainly extra-judicial, not necessarily involved in the decision, and I will frankly acknowledge that subsequent examination and reflection have satisfied me that I was in error in the position that Herring-ton would have been a trustee for Mrs. Wolford even if she had no interest. I was induced to form this conclusion by a course of reasoning which I now think fallacious ; that because a long line of cases -had settled that when, at the'execution of a writing, the party to whom it was delivered has promised to execute another, and on the faith of which the first was executed, the refusal subsequently to perform the promise was a fraud which would let in parole evidence of the transaction, to reform the writing. I inferred that it would also be a fraud, under the Statute of Frauds and Perjuries, and make the party delinquent a trustee ex maleficio. But these cases are inapplicable. Had Mrs. Wolford been an entire stranger to the title, or the defendant in the execution, as whose property th'e land was about to be sold at sheriff’s sale, then the determination in Jackman v. Ringland, 4 W. & S. 149, and Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Robertson v. Robertson, 9 Watts. 32, ruled the case. Upon the trial of this cause in the court below, the deed of P. K. Muse and wife to Mrs. Wolford, dated December 15th 1862, was in evidence. It expressed a consideration of $450, and Mrs. Wolford testified that she had paid that sum with her own money, which had been given to her by her parents and friends for the pur [44] pose. She was living on the land with her husband, who had a prior and perhaps better title. There was certainly sufficient evidence for the jury that she had a bona fide claim to the land. The case of Beegle v. Wentz and Boynton v. Housler, supra, settle that where one having any interest (except the defendant in the execution) 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 is such a fraud as will convert the purchaser into a trustee ex maleficio. It is true that in these cases the interest of the cestui que trust was not questioned. But while it is clear that a mere pretended claim, trumped up for the occasion, would be of no avail, it is different where the claim is bona fide. Five years before the transaction in question Mrs. Wolford, with the advice and assistance of her friends, had bought an outstanding title to her husband’s land, which was her and his home. She was anxious to protect it, and for that purpose, to procure some friend to purchase her husband’s interest at the sheriff’s sale. The defendant offered to advance the money to buy the property, and hold it in trust for her. She had a friend she said who would let her have the money for one year. Herrington said he would allow her two years in which to repay him. She spoke of having a writing drawn, setting forth the agreement. He said he would have his lawyer draw one and send it to her. The writing was drawn. Wigbtman, a friend of Mrs. Wolford, asked him at the sale to sign it. He said, “ Wait till I bid it off, then I will sign it.” After the sale he was again asked for the writing. He said, “ Wait till I get my deed, then I will sign it.” After he got the deed he was asked several times to do so, but refused. This was the testimony of Wightman, and it was confirmed by other witnesses. The plaintiff was entitled to an unqualified affirmance of the first, second, third and sixth points. There was no evidence that the claim of Mrs. Wolford was not bona fide, or that she knew that her deed was good for nothing, and therefore did not record it. Herrington told her it would cost her some trouble, and she had better let him bid it off. All that can be inferred is that she thought it doubtful. Had she considered it a perfectly good title, independent of her husband’s, there would have been no necessity of protecting herself by having the property bid off for her. Even if she knew that the title was bad at the time of the sheriff’s sale, that would not show that she had not purchased it in good faith five years before. Judgment reversed, and a venire facias de novo awarded.