Wiser v. Allen

Mr. Justice Gordon delivered the opinion of the court, January 5th 1880. The plaintiffs claim the land in dispute as heirs of Eli B. Wiser, who, in his lifetime, had title thereto by virtue of a deed from Diadema Perkins, dated February 14th 1865. The defendants, on the other hand, set up a resulting trust in Marcus L. Wiser, under whom they claim, which came about in this wise: Marcus, who was a soldier in the war of the rebellion, sent home money to his [322] father, Eli B. Wiser, with instructions to invest it in land. With this money the said Eli B. bought the land in controversy, but took the deed in his own name. Of course, under these circumstances, the father was but a trustee for the son, and he, the son, might have, by action or entry, enforced this trust at any time within the statutory period. So the defendants, if they entered within that period, could defend on the ground of their possession: Clark v. Trindle, 2 P. F. Smith 492. It follows, if the defendants can stand on this resulting trust, if they are not barred by the Act of April 22d 1856, then the deed of Mrs. Perkins to Marcus L. Wiser is of little or no account, for their equitable title is a sufficient defence. If, however, they have no other dependence than this deed, then truly they are leaning upon a broken staff, for their vendor had no sufficient authority for the execution of such an instrument. She did not profess to act as attorney in fact of Eli B. Wiser, and her deed, previously made to him, had divested her of all title, and she had, therefore, nothing to convey to Marcus. Even had she obtained that deed from Esquire Hughes, as she was instructed to do, and destroyed it, or, for that matter, had Eli destroyed it himself, this would not have reinvested her with the title. As was said by Mr. Justice Coulter, in Cravener v. Bowser, 4 Barr 259, no lawyer would pretend that a legal estate, after it had vested by deed, could be. retransferred to the vendor by a destruction of the deed. But in this case the deed was not destroyed, but was put on record, so that there is nothing loft for discussion hut the resulting trust. Therefore, the court erred in holding that there was a valid surrender, by Eli B. Wiser, of his title, to Mrs. Perkins, and that she had the power and right to execute a deed to Marcus. Now as to the resulting trust: It was held as early as Gregory’s Lessee v. Setter, 1 Dal. 193, and afterwards in German v. Gabbald, 3 Binn. 302, that the Statute of Erauds and Perjuries does not, prevent a declaration of trust from being made by parol, and it would necessarily follow that such trust may also be rebutted or defeated by parol: Hays v. Quay, 18 P. F. Smith 263. Such being the case, the court ought to have admitted the offer of evidence covered by the plaintiff’s fifth assignment; for if Marcus agreed to take from his father, and actually did take, a conveyance of other land, or anything else of value, as a consideration for his equity in the property in controversy, that was an end of the alleged trust. So, Avhat was offered to be proved by Herman L. Wiser and others, ought to have been admitted, for the proposed evidence tended to rebut the presumption of a trust. There was nothing wrong in the admission of the testimony of Mrs. Perkins. She had no interest in -the question being tried, direct or contingent; so the case is not like that of Karns v. Tan [323] ner (16 P. F. Smith 297), where the witness offered was not only the lessor of the premises in dispute, but also one of the defendants. She would have been a witness before the Act of 1869; hence the proviso to that act does not affect her competency. Her deed to Eli B. Wiser was not questioned; both parties claimed under it, and her testimony but tended to prove a collateral agreement between the father and the son, in which she had no more interest than any other disinterested party. The declarations of the widow of Eli B. Wiser, when in possession of the property, were properly admitted to show how she professed to hold. They were, of course, good for nothing else. We observe nothing further in the case requiring comment. The judgment is reversed, and a new venire ordered.