Bennett v. Dollar Savings Bank

The judgment of the Supreme Court was entered Per Curiam. Whatever sympathy we may feel for the plaintiff who may have supposed that he had a binding contract with the defendants, we have failed, after a careful examination of all the testimony, to discover any evidence of consideration to support it. That it could not be regarded as a parol mortgage is evident from the fact that there was no new loan, and for their existing debt the defendants already had a regular valid mortgage, duly recorded, on which they proceeded and purchased at a sheriff’s sale. The only conceivable purpose of such a new parol mortgage must have been to keep the plaintiff’s other creditors at bay or to bar his wife’s dower, neither of which could be set up by the plaintiff to raise a trust. There is no evidence of fraud, as there was in Wolford v. Herrington, 24 P. F. Smith 311, where there was a distinct agreement by the purchaser that he would execute a declaration, which he at first evaded, before the acknowledgment of the sheriff’s deed and afterwards refused, giving the strongest evidence that he never had meant to execute such a paper. The case before us is entirely within the principle of Jackman v. Ringland, 4 W. & S. 149, Barnet v. Dougherty, 8 Casey 371, Kellam v. Smith, 9 Id. 158, and other cases of that class, which have held that where there is nothing more in the transaction than is implied from the violation of a parol agreement, equity will not decree the purchaser to be a trustee. Judgment affirmed.