Staib v. Hayes

OPINION, Mr. Justice Clank: This is a bill for partition; there are prayers for discovery, for an injunction, for an account, and for other specific relief, but these are incidental only to the principal prayer of the bill, which is for partition. The plaintiff claims that although the written title is in the name of W. S. B. Hayes alone, the defendant and himself are the equal owners in common of the two hundred acres of coal land described in the bill, a trust having resulted in his favor as to the one half thereof, from payment by him of one half of the purchase money; and that being so entitled in equity to an undivided moiety of the land, he is entitled to partition, as well as to the further relief prayed for in the bill. The defendant, admitting the existence of an agreement between himself and the plaintiff with reference to this land, claims that it was a conditional agreement; that the condition upon which it was to have effect — 132 — never complied with; that the plaintiff has' no title and cannot have partition. The plaintiff in partition action of partition; this rule applies whether the proceed-are at law or in the equity forms. The general rule how-is, that a suit in partition cannot be made the means of a disputed title: when the proceedings are in the equity forms the bill may be retained for a reasonable time the title has been settled at law, otherwise it will be dismissed. But this rule in the equity practice would seem to only to the legal title; in cases of equitable estates and defences, chancery will take jurisdiction of the whole matter: Adam’s Eq. 230; Story’s Eq. J. 661. An equitable estate is .sufficient in Pennsylvania to support a partition even at law; is sufficient to show a clear, equitable right to the relief prayed for: Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99. If the disputed titles are equitable, courts equity will exercise jurisdiction to settle them, and will grant final relief by way of partition under the same bill: Pomeroy’s Eq. 1388. Such a bill is not multifarious, because partition is decreed incidentally, to complete the measure relief and avoid multiplicity of suits. Under these circumstances, however, the bill should be so framed as to disclose real object. Yague and general as plain that the plaintiff’s claim, in the first instance, is in effect an attempt to establish a resulting trust, and upon the footing of that trust to have partition. It is contended, in the first place, that the Common Pleas of Washington county has no jurisdiction to establish or declare the trust, and therefore has no jurisdiction of the partition; that if this were not so, the plaintiff might accomplish by indirection what could not be done directly; that a trust, if any is shown to exist, having arisen “ by operation or implication of law,” by the 15th section of the act of June 14, 1836, P. L. 632, the Court of Common Pleas of the county in which the trustee resided at the inception of the trust alone has jurisdiction, and that as W. S. B. Hayes, the alleged trustee, at the time resided in Allegheny county, the proceeding to establish it must be instituted in that county. This contention involves an entire mis — 133 — conception of the purpose and meaning of the act of 1836. That act, if it has any application to a trust created under the circumstances here alleged, has no application to proceedings at law or in equity in respect of the title; it refers rather to the control and management of the trustee, where the trust has been created by deed or will, or has been otherwise established. In 1836, and for twenty years thereafter, ejectment was the only means by which a trust might be assorted against the holder of the legal title; and that, being a local action, was necessarily brought in the Common Pleas of the county where the lands were situated. It is absurd to suppose that the legislature intended that an ejectment might be brought in one county to recover the possession of lands lying in another county. We have no doubt as to the jurisdiction of the Common Pleas of Washington county, in equity, to hear and determine the question as to the existence of this trust, and if the demandant be found to have title under it, to award a partition ; to establish the trust, however, the evidence must be clear, explicit, and unequivocal, such as would satisfy the conscience of a chancellor: Plumer v. Guthrie, 76 Pa. 441; Lloyd v. Lynch, 28 Pa. 419; McGinity v. McGinity, 63 Pa. 38. That there was some agreement between the parties with reference to the purchase of this land at the time of the Orphans’ Court sale, upon which a part of the purchase-money was then and afterwards paid by each, is conceded, but what that agreement was is the inatter most in dispute. The agreement of itself is nothing, of course; under the act of 1856 an express trust cannot exist by parol; if any trust was created, it must be implied from the payment of the purchase-money. The agreement is only important as it exhibits the purpose of the parties with reference to the payment; that is, to say, by the agreement it may appear that the money was applied, not as a loan, but in the purchase of the lands, or of some particular estate or specific interest therein, or of some designated part thereof; but the trust arises, if it arise at all, from the payment of the money at the inception of the title. “No oral agreements and no payments before or after the title, is taken will create a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from it: ” Perry on Trusts, 133. — 134 — In this case it is conceded that ten per cent of the purchase-money was paid in equal portions by the parties on the day of the sale; that afterwards, and before the deed was executed, the balance of the first payment and the whole of the second payment were in like manner paid in equal portions, and that after this bill was filed, on the delivery of the deed to Hayes, he paid the remaining one third of the purchase-money, excepting a small portion reserved under an order of the court to secure the dower of Robison’s widow, although Staib has at all times been ready and willing to pay his proportion of this last payment, if opportunity had been given him to do so. The principal question of dispute is as to the footing upon which the money was paid. The plaintiff alleges in the bill that he was a purchaser of the land equally and in common with the defendant, and that as his money was applied in payment of the one half of the first two instalments, in pursuance of the parol agreement to that effect, a trust results in his favor for the undivided half of the land, upon payment by him of the one half of the remaining instalment, which payment he avers he is ready to make- The answer of the defendant is a direct and positive denial of this, and being responsive to the bill, the burden of proof is upon the plaintiff to sustain his version of the transaction by the evidence of two witnesses, or of one witness and corroborating circumstances equivalent to the testimony of a second witness. The plaintiff having been called as a witness testified substantially in support of the bill, but he was not sustained by any other witness, and the only matter, by way of corroboration, which we have been able to find in the evidence, is the presumption which is supposed to arise from the fact that the parties contributed equally to the payment of the first two instalments of the purchase-money. Upon this branch of the case the learned master says: “ The fact that the plaintiff paid the half of the purchase-money, and that the defendant permitted him to do so, is strong evidence that it was the contract that he should so pay, and the master finds as a fact established that such was the contract. s< Other circumstances relied upon by the plaintiff to sustain his version of the contract have already been found as facts, viz.: the sale was an open public sale, the two parties were the only competing bidders for the property, and the purchase of — 135 — the property was a joint purchase. Neither party then had anything to give or anything to receive as between themselves; each stood on an equal footing; each wanted the property, or was willing to take a part of it, at as low a figure as possible. There was- therefore no reason why either should enter into an agreement by which he might eventually be compelled to pay for one hundred acres of coal and only get eighty or eighty-five. The only consideration for their agreement was mutual abstaining from bidding, and this was as much for the benefit of one as of the other. “ The master is of the opinion that this testimony and these circumstances together come up to the full measure of proof required by the rules in equity, and unless overborne by the evidence for the defence, will sustain the position of the plaintiff upon the point under consideration.” If we enter into an analysis of this finding of the master and the reasons assigned for it, and discard from our consideration all of the circumstances stated which really have no bearing upon the question one way or the other, it is plain there remains in support of the plaintiff’s case his own testimony alone, corroborated by the single circumstance that all the purchase-money which had been paid at the filing of the bill was paid by the parties in equal portions. On the part of the defendant, we have not only his answer, which is responsive to the bill, but we have his testimony in direct denial and contradiction of the plaintiff, and that testimony corroborated and supported at the very point of difficulty by the testimony of two entirely disinterested witnesses, who have not been impeached and whose statements are wholly uncontradicted by any witness other than the plaintiff himself. The defendant testifies, in substance, that in no event was Staib to get more of the two hundred acres than would be found to lie above the extension or prolongation of the line between the Victory Works and the Eobison Front, and he was only to have that upon paying a proportional part of the purchase-money, and procuring for Hayes an agreement from Wickerham for the conveyance of the Eeserve tract, at the same price per acre paid for the two hundred acres. In this statement he is fully corroborated in the testimony of Thomas S. Hutchinson, who was actually present and par — 136 — ticipated in the transaction involving the purchase of the land. Mr. Hutchinson testifies, that he attended the Orphans’ Court sale with and in the interest of Hayes; that whilst the sale was in progress Staib said to him all he wanted was that the line between the Robison and the Victory tracts should be extended through the two hundred acres, and that he wanted only that portion back of the Victory Works to the prolongation of that line. He said he could buy the Reserve tract of sixty-four acres and have it deeded to Hayes, and that he would do that; then there would be plenty for both. Mr. Hutchinson brought the parties together; he says the matter was talked over between them in his presence, and that it was then and there agreed and well understood that Staib would have the sixty-four acres conveyed to Hayes; the price was not definitely fixed, but Staib said that he could get it at the same price per acre the two hundred acres would sell for at the Orphans’ Court sale, and that the Victory line should be extended straight through the two hundred acre tract; that after this agreement was concluded, the two hundred acre tract was knocked down to Staib at $76 per acre, but he directed the title to be made to Hayes in pursuance of the agreement between them. It may be fairly inferred from the facts stated on either side, that each party was to pay for the lands he acquired under the arrangement, whatever that arrangement may be. Hutchinson further testifies that a month or more after the purchase of the land, he was riding in a buggy with one Brokaw, and they met Staib: “Staib said, ‘Tom, I wish you would see Mr. Hayes and get a small paper for my interest in that coal, so I can show it in bank; ’ I said, there was no need of it; ‘you get a deed for the sixty-four acres and have it deeded to Mr. Hayes, and we’ll continue the line through straight, as we agreed to; ’ he said, ‘ That’s all I want, and it’s the only way it can be done; ’ there was only a few words spoken. About nine or ten days after that interview I was going home and Mr. Staib was coming up the road; he was coming on the left-hand side. Mr. Staib brought up the same subject; he said, ‘ Tom, I wish you would get Mr. Hayes to give me a little paper to show I have paid some money in there; ’ I said, ‘ get the sixty-four acres from Wickerham as you agreed to; — 137 — get it at $76 an acre, the same price you said you could get it for; you said you knew you could, and have it deeded to Mr. Hayes, then we will continue the line straight through the two hundred acres as we agreed upon; ’ says he, ‘ Ail right, I can get it and will have it done; ’ now there was no temper, only a matter of business, and pleasantly talked over.” Mr. Brokaw, being called, testified to the conversations between Staib and Hutchinson on these occasions referred to by Hutchinson, substantially as stated by Hutchinson himself. Mr. Brokaw, referring to the last conversation related by Hutchinson, says : “ Mr. Staib was in his buggy, going home; we met not many yards from the same place, and the same conversation started again in regard to settling the difficulty. Mr. Staib said, ‘We can just as well settle that as not among ourselves ; there is no use going to court about it; ’ Mr. Hutchinson says, ‘ Y es, we will settle it just exactly as we agreed to on the ground; you get the titles of the Wickerham Reserve coal made in Mr. Hayes’s name and we’ll spare no time in settling it; ’ ‘Well,’ says Mr Staib, ‘ we’ll settle it in that way; I can get the titles and we’ll settle it in that way; ’ Mr. Hutchinson said, ‘ Well, we agreed to run that Victory line straight through; ’ Mr. Staib said, ‘ That’s the only practicable way it can be done, and I am willing to do it; ’ and says he, ‘ We’ll get Mr. Hayes, and all go together, and we’ll settle this among ourselves.’ ” What this “ difficulty ” was does not distinctly appear, but it does appear that Staib wanted some written acknowledgment by Hayes that his money had been applied in the purchase, and declaring his interest in the land; this Hayes would seem to have refused until Staib should secure the title to the sixty-four acres, according to his agreement; as there is no evidence of any other disagreement between them at this time, we may well suppose this was the difficulty referred to. In September, 1880, Staib, by articles of agreement contracted with Wickerham for the sixty-four acres; the articles are not printed, but by the deeds which were executed in October, 1888, it appears he paid $100 per acre and it is conceded he signed the agreement as “ attorney in fact.” Although he was not attorney in fact for Hayes, it does not appear that he was attorney in fact for anybody else, and it is certainly a circumstance in the case not wholly irrelevant, that, — 138 — having this arrangement with Hayes, he bought the land for somebody other than himself, without disclosing who that was, and afterwards took the deed in his own name. The fact remains, however, that he is now and for five years has been the owner of the sixty-four acres, and has not at any time offered to convey to Hayes, either upon the terms of the agreement, as he states it himself, or as it is stated by Hayes, or upon any other terms. The only fact in corroboration of the plaintiff’s testimony, as we have said, is the payment by the parties equally of the first two instalments of the purchase-money; but this fact is altogether consistent with the theory of the defendant, for it was not then known precisely where the prolongation of the Victory line would lead or whether it would work an equal division of the tract or not; but Staib, who was more familiar with the ground, may well have supposed that a division according to that line would be approximately equal, and that his exact proportion of the purchase-money might be adjusted on the last payment. Whether the trust was for the undivided half of the land or was for a particular or designated portion thereof in severalty, upon the terms stated by the defendant, is for the plaintiff to establish; the party who seeks to fasten a trust upon the legal title to land takes the burden of establishing it, and all the essential requisites of that trust must be shown by clear, explicit, and unequivocal proof: Earnest’s App., 106 Pa. 310. When the answer to a bill is responsive, it must, as we have already said, be supported by the testimony of two witnesses or by one witness and corroborating circumstances equivalent to another. Under the peculiar facts of this case, as alleged on one side and the other, we cannot agree that the equal payment of a part of the purchase-money only is a circumstance equivalent to the testimony of another witness; for that fact seems to be quite as consistent with one theory of the case as the other. This court will not reverse the finding of a master, after it has had the approval of the court below, except for clear error, but we think the proof of a trust for the undivided one half of this land was not up to the required standard; and besides, the weight of the evidence is undoubtedly against it; the theory of the defendant is clearly established by the proofs, and the master should have so found. The plaintiff has shown — 139 — no title to the two hundred acres in common with the defendant, and, therefore, cannot have partition. If he is entitled to any interest in that land, his interest is in severalty and is confined to that portion of the tract above the prolongation of the Victory line. The plaintiff has obtained and now holds the title to the Reserve tract of sixty-four acres; he holds it in his own right and for his own use; he has not offered and does not now offer, upon being reimbursed for his outlay, to convey it to Hayes. He cannot complain, therefore, that Hayes declines to recognize his equity to any part of the land; for it is a fundamental principle or maxim that he who seeks equity must do equity; the court can give to the plaintiff the relief to which ho is entitled only upon condition that ho has given, or is ready and willing to give, the defendant such corresponding rights as he may be entitled to in respect of the subject-matter of the suit. The plaintiff has shown neither title to nor possession of the lands described in the bill, and of which he prays to have partition. The possession of one tenant in common, even though he be in the exclusive receipt of the profits, may be, and as a general rule is, treated as the possession of all for the purposes of a partition; the possession of one is the possession of all, unless by an actual ouster, or an exclusive pernancy of the profits, against the will of the others, one shall manifest a clear intention to hold the land adversely and in hostility to the common right. In this case it is clear that Staib has never had, nor does he pretend to have, any possession of the premises ; indeed, Hayes has admittedly been in the exclusive occupancy of the lands and pernancy of the profits ever since his purchase, and, at the filing of the bill, held in open and avowed hostility to the plaintiff. Having shown no title nor possession the plaintiff is certainly not entitled to a partition, and upon the same ground it is plain that his prayers for a discovery for an account, for an assessment of damages, and for other relief, must also be refused. For the recovery of such damages as he may have sustained by reason of the defendant’s invasion of the Victory Works, or for mining in the Reserve tract in excess of his rights, the law affords an adequate and proper remedy. The decree is therefore reversed, and the bill dismissed at the cost of the appellee.