Brickell & Hite v. Earley

Mr. Justice Gordon delivered the opinion of the court March 14th, 1887. Admittedly the plaintiffs have no title to the lands in dispute unless they succeed in establishing a resulting trust arising from the fraud of Dr. Earlejr, the defendant. Whilst the plaintiffs and defendant were tenants in common as to several tracts of land, yet, as to the lots in dispute, they were not such, for these lots were expressly excepted out of the conveyances to them, so that nothing can be predicated of that relation in favor of the contention of the plaintiffs. As to these lots, either of the parties was at liberty to act for himself; he might buy one or all of them at treasurer’s sale, or otherwise as he saw fit without consulting his fellows, since his act in this particular could-not affect their rights. How then does Dr. Earley become the trustee for Brickell and Hite? How does this alleged resulting trust arise? In order to sustain a proposition of this kind, the plaintiffs are bound to show that Earley obtained his title in fraud of their right, or that their money was used in its acquisition : Blyholder v. Gilson, 18 Pa., 134; Cross’s Ap., 97 Pa., 471. But there is not even an offer to prove that so much as a dollar of the plaintiffs’ money went into the purchase of the lands in controversy. Then again, when we turn to the charge of fraud, it is unsupported b}r a shadow of proof. On this' head it is complained that the court overruled an offer to prove that Earley had employed Willard to make an examination of the lines and records of the company lands ; that he did make such an examination, and that “ these lands in controversy were within the bounds of the survey made by him at that time, or within [479] the bounds of a paper description which he has before him, and that all was done at the request of Dr. Earley for Earley, Brick-ell and Hite.” But we are as obtuse as the court below in perceiving how this, if proven, would have manifested the fact that the defendant acquired title to these lands as a co-tenant or trustee. A fatal defect in the offer is that it does not propose to show anything as to the manner of the acquisition, and failing this it fails altogether : Cross’s Ap., supra. The next assignment is to the refusal of the court to permit the plaintiffs to prove, “ by the witness on the stand, Brickell, that Dr. Earley, the defendant, represented to them at the time of the purchase and subsequently, that there was a number of those tracts, or parts of tracts, the title to which was in doubt, and which he could perfect by purchasing at treasurer’s sale, and that an agreement was entered into between them that he should do so, and that agreement was part of the original transaction, and that it was on the faith of those representations, and believing that they would thus acquire a larger tract than expressed in the deed, that they went into the purchase with Dr. Earley. To be followed by letters from Earley showing that he was pursuing a line of policy, in regard to obtaining the tracts at treasurer’s sale, which he had stated to them could be accomplished at the time they made the purchase.” It is enough to say with reference to this offer, that it is too indefinite in not specifying what those tracts, or parts of tracts, were. No part of a parol trust can be left to inference; the proof to establish it must, in all particulars, be clear and specific. Moreover, there is nothing in the offer to show that the parties ever did come to any definite agreement concerning the matter. The offers in the third and fourth assignments are as ineffective as are the others. Admitting that Earley’s letter (Exhibit 11), referred to these lands when it stated the fact, '• Mr. Hall will assign deeds at any time if money is paid,” yet, as there is no offer to show that they did pay the money to Mr. Hall, or that he did assign, the proposition comes to nothing. So, there was no significance in the fact that both before and after the sale to Hall, the defendant declared that the sale was for the joint benefit of the parties and to perfect their title. Earley could not thus compromise Hall, and when the treasurer’s title was complete in Hall, he could sell to whom he pleased, and Earley, even though he had been a tenant in common with the plaintiffs in these Arery lands, could take from him a perfect title excluding his co-tenants: Lewis v. Robinson, 10 Watts, 354; Kirkpatrick v. Mathiot, 4 W. & S., 251. Nor can Earley’s case be Aveakened by the showing that the plaintiffs had notice of Hall’s purchase. Parol trusts are not favorites, and unless the proof of them [480] is clear and specific they will not be entertained. In the case in hand, assuming, as we must, the correctness of the plaintiffs’ offers and proofs, and there is nothing in them that is distinct and definite. No specific tracts are defined, but “there were a number of those tracts, or parts of tracts, the title to which was in doubt,” and for that reason they were allowed to go to sale, and were to be bought in by Dr. Earley. Indefinite as this statement is, yet it is very clear that no reference could have been had to the lots in controversjs for ,as they had no pretence of title, of that fact there could have been no doubt. So, with reference to Earley’s letter of June 20th, 1878, it is not,only not certain that the land in controversy is referred to, but the contrary. Mr. Hall had purchased not only these Earley lots, but also the lands belonging to the company, and it is evident that reference is made to the latter when it is said, “ Mr. Hall will assign deeds at any time if money is paid at once, but if he pays out, or has to raise the money, we must pay the twenty-five per cent.” This language refers to a redemption, and not to a purchase of property not theretofore belonging to the company. But it is useless to dwell upon this fruitless matter, for there is nothing in the case which tends to raise a resulting trust. The judgment is affirmed.