Stafford v. Wheeler

Mr. Justice Paxson delivered the opinion of the court, May 3d 1880. The defendant has no right to complain that the court bolow refused to admit James Huntington as a defendant. Huntington did not except to this ruling, and took no writ of error. It was said by Mr. Justice Rogers, in McClay v. Benedict, 1 Rawle 424, that “ under the construction of the statute 2 Greorge II., which is similar to our act, it is not a matter of course that a person should bo made a co-defendant. In practice, on application to the court, it is frequently refused. For where a person claims in opposition to the title of the defendant, he can in no light be considered as landlord, and it would be unjust to the tenant that he should be made a co-defendant, as their defences might interfere with each other.” In this case the application was not made until about eight years after the suit was commenced, and upon the day it was called for trial. After the court below had refused to admit Huntington as a party, the defendant attempted to sot up an outstanding title in Huntington. The evidence offered for this purpose was ruled out, and forms the subject of the fourth assignment. It is doubtless true, as a general proposition, that a defendant in ejectment may set up an outstanding title in a third person. The plaintiff must recover upon the strength of his own title. But the title which this defendant offers to set up was derived from himself, and so far as he is concerned, the jury have found it to be fraudulent; at least, they have found the facts from which the fraud results by necessary implication. They Lave found the parol trust in favor of Brownell, and it needs no argument to show that it was a fraud on the part of the defendant to encumber the property by a mortgage. It is also equally clear that the defendant cannot set up an outstanding title which is the offspring of his own fraud. 2. The notos of Mary Brownell’s testimony taken before the arbitrators was objected to, because offered to prove a trust by parol, notwithstanding the Act of 1856. The 6th, 7th and 8th assignments may bo considered in this connection. It was contended by the plaintiff, that the evidence did not establish a parol trust, but merely a defeasible deed or mortgage, which did not como within the Act of 1856. We are of opinion, that, whether a mortgage or a trust, the Act of 1856 does not apply, as the trust, if there be a trust, was a resulting trust, and comes within the exception of the proviso of the act. It was said in Barnet v. Dougherty, 8 Casey 372, “The proviso, indeed, excepts from its operation resulting trusts, such as the law implies. A resulting trust, however, is raised only from fraud in obtaining the title, or [468] from payment of the purchase-money when the title is acquired.” The plaintiff’s evidence, if believed, establishes a direct fraud in obtaining the title. The trust, if any, arose with the title, and was not the result of the subsequent act of the parties. 8. This assignment is not sustained. The value of the farm and dairy-tools was relevant for the purpose of showing that Stafford had been fully paid. 4. The fourth assignment is equally without merit. The fact that the health of the witness prevented his attendance at the' trial, rendered his deposition competent. 9. This assignment raises the question, whether in this proceeding the plaintiff could recover the mesne profits up to the time of trial ? The learned judge instructed the jury that if they found the deed from Brownell to Stafford was a mortgage, “ and that Stafford was indebted to Brownell on account for any of the rents, issues and profits at the time said action of ejectment was brought, the jury can also take into consideration and charge the defendant with the rents, issues and profits of said farm since the 3uit was brought, for the purpose of ascertaining and determining whether the defendant has been fully reimbursed under the agreement as claimed by the plaintiff.” For this purpose the evidence was clearly competent. We see no error in this record. The judgment, therefore, must be affirmed.