Rupp's Appeal

Mr. Justice Gordon delivered the opinion of the court, May 22d 1882. To the able opinion of the learned judge of the court below little either of force or importance can be added. From the testimony of Sherman and Leas, nothing can be more clear than that Mrs. Bomberger advanced her own money on the purchase from Sherman, and that, under the express arrangement that the deed was to be made to her. Not only was this her previous understanding and settled determination, but at the [537] very time of the delivery of that deed, she insisted upon having it so executed, and never voluntarily agreed to anything else. But what could she do ? Her husband had obtained the possession. of her money; money that had been but the evening before paid over to her by her brother, from her mother’s estate, and thus paid for the express purpose of investing it in this land ; the justice had already drawn the deed in his name, and he, the husband, peremptorily refused to permit it to be altered. Not only so, but he refused, not indeed on her suggestion, but on that of the justice, even to secure her by a judgment note. If this was a loan by Mrs. Bomberger to her husband, it was a forced one ; one to which she never assented, and the note, afterward given to, and accepted by her, could not, by implication, bind, her to that which was, in no sense, her voluntary contract. In all this she was powerless to accomplish her own purpose, and she was compelled to succumb to the will of her husband. Nor was that husband, at this time, if we believe the evidence, at all fit to transact business for himself, much less to direct and control that of his wife. Charles Sherman says: “ The only reason I can give for the deed not being made in her name, was that Joseph Bomberger was a little contrary. I did not consider he was in his right mind ; he had a stroke.” We have here, then, every element which is necessary to constitute a resulting trust. Mrs. Bomberger’s money is taken and invested in land, the deed to which was to have been made to her, but which, in fact, and without her consent, was made to her husband. We think this case in all its phases is covered by that of Fillman v. Divers, 7 Ca. 429, in which it was said by Mr. Justice Strong, “if it was the wife’s money which paid for the lot, and if, in addition to this, this money was obtained by the husband on condition that the deed should be taken in the wife’s name, as the evidence would seem to show, the law, as it was before 1848, regarded the husband as a trustee for the wife. Nor did the fact of his giving a note for the money, and subsequently a judgment, convert his situation as trustee into that of a mere debtor.’ ’ But it is objected that the sale under the order of the Orphans’ Court could operate only upon the interest of Bomberger ; that by it nothing more than his right in the land was conveyed, hence, her equities remained undisturbed, and the money now for distribution, belongs ’ to the estate. Had such been the only effect of the sale, this exception to the ruling of the court would be well taken, for the case would then fall within Kline’s Ap., 3 Wr. 463 ; but, unfortunately for this position, such is not the fact; the purchaser, having no notice of Mrs. Bomberger’s equity, took the title divested of that equity. The sale was of the property as unincumbered, and the money [538] raised by it now stands in its place, and as it can be directly and certainly divided and apportioned among the owners thereof, so must it be divided and apportioned: Thompson’s Ap. 10 Har. 16. This caséis, in principle, supported by Diehl’s Ap., 9 Ca. 406. A decedent had, in his lifetime, by articles of agreement, contracted for a tract of laud on which he had paid, at the time of his death, about one-third of the purchase money. An order was made by the Orphans’ Court for. the sale of this property for the payment of the debts of the estate of the decedent, and it was agreed between the vendor and administrator that the sale should convey the whole title, and under this arrangement the sale was made. Held, that the administrator could be charged only with the amount for which the land sold after deducting therefrom the purchase money due the vendor. In the case in hand, the Orphans’ Court sale passed to the purchaser, not only the estate of the trustee, but also that of ■the cestui quo trust, and following the rule as above stated, of the proceeds thus raised the creditors of the deceased trustee are entitled to but so much as came from his estate, and the balance belongs to Mrs. Bomberger, the cestui que use. The appeal is dismissed, and the decree affirmed at the costs of the appellant. Mercur, J. dissents, as the facts do not justify the application of the law.