McMurray's Appeal

The opinion of the court was delivered by Sharswood, C. J., December 30th 1882. The affidavits of defence of Chalfont and Herron to the scire facias on the Watters’ mortgage were rejected by the learned judge when offered in evidence, and we cannot assume that they were considered by him. The statement of them in the opinion rightly interpreted is only as to the nature of their claim. There was sufficient to support them in the testimony of Robert Marshall. The main contention here has been as to the competency of this witness and the competency of his evidence. The learned judge below appeared to think that he was interested, and Watters being dead, was not a witness under the Act of 1869, but thought that the objection came too late. It is not necessary to consider whether he was right in this, for we all think that Robert Marshall was a competent witness. He was directly interested in the question ; but that is not enough, he must be directly interested in the case before the court. It is clear that he could neither gain nor lose by any decision on [427] by any decision on the claim of Clialfant and Herron, and it is equally clear that the record of their proceeding could not be given in evidence for or against him. Had this been a scire facias to foreclose the mortgage he could not be a witness being one of the terre-tenants of the land. That is all that was decided in Kuester v. Keck, 8 W. & S. 16, referred to by the learned judge below .in his opinion. Marshall’s evidence was relevant and competent, whether sufficient to establish a resulting trust or not. The Orphans’ Court in the settlement and distribution of the estates of decedents has undoubted jurisdiction to decide upon the claims of creditors. It is true if there was no valid trust their claim could only be for damages for breach of contract, and not for the balance of the purchase-money of the land. But we think there was enough here to show a valid trust within the decisions which have been made under the statute of frauds. That statute is a shield against fraud, not a weapon to make it effectual. Certainly the claimant could not set up that they were trustees ex maleficio as against their cestui que trust. But suppose the parol agreement had been in writing, can it be doubted that they could have claimed the balance of the purchase-money? To say, that while the cestui que trust could insist on the specific performance of the contract, the trustee could not, would not be to hold the scales of justice even. We think that by the surrender of the bonds and mortgage to the mortgagors held and produced by the claimants, and the evidence of the payment of a considerable sum by Watters on account of the purchase-money, the contract was so far executed that it would be unjust and inequitable not to carry it into full effect. Decree affirmed, and appeal dismissed at the costs of the appellants.