Salsbury v. Black

Opinion, Mr. Justice Paxson : This was an action of ejectment. The defendant claimed title by virtue of a sheriff’s deed. The plaintiff claims under a parol trust, and alleges that it comes within the exception of the act of 1856, for the reason that it is a resulting trust. The facts, stating them in the most favorable way for the plaintiff, are substantially as follows: At and for some time' before the sheriff’s sale, the plaintiff was the owner of the house in question. The defendant occupied it as her tenant. The rent was paid to her brother. There were three liens on [206] the property, viz.: 1, a mortgage of $2,000, held by a Mrs. Sherwood ; 2, a judgment for $2,000, held by the defendant; 3, a judgment in favor of Thomas Moore for $1,249.54. The interest upon all these liens was largely in arrear. In June, 1878, the defendant ascertaining that the Sherwood mortgage was about to be foreclosed, notified the plaintiff, who lived out of the county, of that fact. She met the defendant in Wilkes-Barre shortly thereafter, and an arrangement was made by which the arrears of interest due on the Sherwood mortgage were paid and the proceedings stopped, the defendant advancing the sum of $250 for that purpose. The plaintiff alleges that at this interview the defendant agreed to sell the property on his judgment, and buy it in for her. This would leave it subject to the Sherwood mortgage. The defendant denies this, and says he told her if the interest was paid upon the mortgage, he would let his judgment stand for two years at six per cent. Be that as it may, the property was sold by the sheriff upon defendant’s judgment in the following December. The plaintiff had notice of this sale: she came to Scranton on the morning thereof; had an interview with the defendant previous to the sale, at which it was agreed that he would buy the property for the plaintiff. He purchased it accordingly, and informed her of it the same evening. The defendant alleges that plaintiff was to have until the 1st of April following to redeem. The plaintiff swears that no time was fixed. The defendant purchased the property, and paid the costs of the sale, taxes, etc., with his own money. The plaintiff did not contribute a dollar towards either the purchase money or the expenses; nor did she offer to do so for three years, and even then she made no tender of the money. When the property was sold at the sheriff’s sale, the times were hard, and the price of real estate very low in Scranton. The house was old and very much out of repair. At the time this ejectment was brought, the defendant had expended about seven thousand dollars in repairing the house and remodeling it, until it is now a comparatively new house, and greatly enhanced in value thereby, as well as by the advance in the values of real estate in Scranton. ■ A considerable amount of this expenditure was made prior to any demand by the plaintiff for a re-conveyance. [207] Under these facts, it is not difficult to apply the law. There was no resulting trust arising from the payment of the purchase money, for the plaintiff had not paid any portion of it. Nor was there any such fraud in obtaining the title as would create a resulting trust. It is now settled by repeated decisions that if one buys property at sheriff’s sale, and verbally agrees to hold it in trust for the defendant, with a right of redemption in the defendant within a limited period, it is a contract resting in parol merely, and does not transfer any title to the land: Fox v. Heffner, 1 W. & S. 372; Kellum v. Smith, 32 Pa. 158. In the case last cited, it was said by Justice Strong : “ When a purchaser at a sheriff’s sale promises to hold for the debtor, and afterwards refuses to comply with his engagement, the fraud, if any, is not at the sale, not in the promise, but in its subsequent breach. That is too late.” The plaintiff here, although not actually the judgment debtor, occupied the position of one. She owned the property bound by the judgment. Although not liable for the judgment, her property was, so that her case comes within the principle of those cited. The latest case upon this subject is Kimmel v. Smith, 117 Pa. 183, decided last October in the Western district. Tlie subject is there treated exhaustively by our brother Green, and many of the authorities cited. I need not add to what was there better said. Not only is this case barren of a resulting trust, but the testimony fails to disclose any fraud, legal or actual. The defendant admits that the plaintiff could have redeemed up to the first of April following the sale. The plaintiff says, no time was fixed. Granted. The law then fixes a reasonable time. Equity will not give an unlimited time to redeem. It will not allow a person claiming such a right to lie by for three years, taking the chances of the market, and then when the property has been repaired and greatly increased in value by the change of times, come forward and demand a conveyance. To permit it in this case would allow this plaintiff to get back a property worth $15,000 for one third of that sum. The allegation that the defendant was paid out of the rents is not sustained by the evidence. It was not proved that any rent was due at the time of the sheriff’s sale. On the contrary, he had advanced $250 out of rent subsequently falling due, to [208] enable the plaintiff to pay the interest on the Sherwood mortgage. What has been said substantially covers all the assignments of error except the last one. This will not be discussed because not in conformity with the rules of court. I have looked at it sufficiently to say, however, that if the deposition was improperly rejected, it did the plaintiff no harm. Her case was too hopelessly bad to be cured by this deposition. Judgment affirmed.