Appeal of Wolff

Opinion, Mr. Justice Gbeen: The one fifth interest of Zantzinger Smith in the property called Sunny Slope was sold by the sheriff on September 4, 1876, and the deed therefor was acknowledged February 24, 1877. Mrs. Martha McD. Smith, Zantzinger’s mother, was the purchaser, and the deed was made to her. The purchase money was $2,100, and it was paid by the purchaser, just when does not appear, but certainly not earlier than the day of sale, September 4, 1876. It is not alleged that any part of the particular money which was paid for the purchase was furnished by Zantzinger Smith. Nevertheless, it is claimed that the property purchased belonged to him by way of a resulting trust. In order to make out this claim, it is alleged that at a prior date a sum of money, $2,500, was borrowed by Mrs. Smith upon a nóte, signed by her son and herself, from one J. H. Miller, the purpose of which was to'pay off a judgment held by one Fowler against Zantzinger; that this money was charged as an advancement by Mrs. Smith against her son, and, therefore, is to be treated as his money; and that this was the money with which the property was purchased and paid for. We encounter such serious difficulties in the way of connecting this money with the purchase at sheriff’s sale, that we are unable to agree with the learned court below, who found that a resulting trust was thereby created. In point of fact not a dollar of the money was ever furnished by Zantzinger. On the contrary, he was enormously indebted to his mother for numerous sums of money which she had either lent or advanced to him at various times, both before and subsequently to this transaction. The $2,500 were borrowed on May 22, 1874, from J. H. Miller. What was done with that money we [449] cannot discover from any testimony in this record. It was not applied to the payment of the Fowler judgment. It was not charged to Zantzinger in the account kept by his brother of the various sums paid to or for Zantzinger, at or anywhere near the time it was borrowed from Miller. The money, of course, belonged to Mrs. Smith, and as the testimony shows that she was constantly in need of money to supply the demands of her three sons, it doubtless was consumed in that way. The Miller note was finally paid, according to the account kept by Luther, on June 8, 1876, and the whole amount, which was then $2,875.50, was charged, on that day, to Zantzinger. The note was really for $2,700, the odd $200 being for some other money which Zantzinger owed to Miller. The remainder of the sum was doubtless for interest. There is not a particle of proof that the very money which was received from Miller was kept unused during all the time from May 22, 1874, until June 8, 1876. On the contrary, it cannot bo doubted, from the testimony, that it was used long before; most likely as soon as it was obtained. When the note was paid, Luther entered the whole amount as a charge against Zantzinger. Whether his mother directed this, or was informed of it, or ever had knowledge of it, we are not informed, and a most important element on a question of advancement is therefore lacking. But even if the money was charged as an advancement with her knowledge, and in point of fact the advancement never was made, the only necessary legal effect of that fact would be that it must be stricken out of the account of advancements, and the total amount of advancements reduced that much. In any ordinary case, where the question was how much had been advanced, this certainly would be the manner in which the matter would be disposed of. The payment on June 8, 1876, was not a payment to Zantzinger but to Miller, and therefore it could not of itself operate as an advancement or as proof of one. If the money received from Miller had been given to, or paid for, Zantzinger, it could, when paid back to Miller, or when previously paid to or for Zantzinger, be properly charged as an advancement, but, if so, it was exhausted as an advancement by its previous application and could not be used in that way for any future purpose. If it was used by Mrs. Smith for any other purpose, then it was [450] error in Luther to charge it as an advancement against Zantzinger, and the proper remedy for that error is to strike it out of the account. When the Miller note was paid, it was Mrs. Smith’s money, not Zantzinger’s, that paid it, and hence there is no room for a resulting trust in favor of Zantzinger to be founded upon that payment. Of course, if she had then received the money, instead of paying it, and had charged it as an advancement, and subsequently used it to buy the interest in Sunny Slope for Zantzinger, a resulting trust would have arisen in his favor, and the case would have come within the ruling in Beck v. Graybill, 28 Pa. 66, and Morey v. Herrick, 18 Pa. 123. But of all this there was not a particle of testimony. On the contrary, the positive proof is that the payment of June 8, 187-6, merely extinguished a personal liability of Mrs. Smith’s. Granting that because Zantzinger also signed the Miller note, and that it was the original intention to use the money derived from that note to pay off the Fowler judgment against Zantzinger, that intention was never carried out, the money was used for other purposes, and it would not be possible to build a resulting trust in the ultimate purchase upon that original frustrated intention. Moreoveij if the money had been applied to the payment of the Fowler judgment, the title would not have been acquired, only a debt of Zantzinger’s would have been paid, and this would have afforded the basis of a charge against Zantzinger, either as a loan or advancement, according to the intention of Mrs. Smith. There is, therefore, no sufficient identity between the original intended transaction and the ultimate one, as it is now claimed for Zantzinger, to justify the establishment of the latter without further proof. But there is no such proof in the case. In point of fact when the property was sold by the sheriff it was purchased by Mrs. Smith on September 4, 1876. It was paid for by her with her own money. There is no charge of this money as an advancement to Zantzinger; there is no testimony in the case that has any reference to it, in the point of view of its being, or being intended to be treated ás an advancement. But it is argued that Mrs. Smith held the land upon an express trust for Zantzinger, and in support of this theory a letter is given in evidence, written by her to him in October, 1878. The material part of that letter is in the following words: [451] “ Í am very sorry you lost the farm, but times are so hard I suspect L. couldn’t make the payment. There is so much to meet that he can’t send money to take us home. 1 will satisfy those judgments when I return and have your one fifth of Sunny Slope fixed so that it will not follow the farm, as you fear it may, and so you will have it free from the estate, as I promised you should have them both. I cannot answer now about the loss of the farm, but all the money advanced you will be taken from your share of the estate.” Leaving out of view the consideration whether there is a sufficiently definite description of the land to take the case out of the operation of the statute of frauds, contained in this letter, we are quite unable to agree that any of the terms of the letter either create a trust or prove a subsisting one. Mrs. Smith promises that she will satisfy certain judgments when she gets home, and that she will have Zantzinger’s one fifth of Sunny Slope fixed so that it will not follow the farm, so that he will have it free from the estate. Undoubtedly this language proves what she intended to do, but that is all. An unfulfilled intention, however, cannot create an estate in land, either legal or equitable. There must be something more. That which she said she would do she never did do, and hence her declaration has no greater force than an unperformed promise. It is argued, however, that she also said in the same connection, “as I promised you should have them both; ” and that in some way we must treat this as a recognition of a subsisting trust. Unfortunately that is precisely what it is not. A promise by one that another shall have his land is not a declaration that he already does have it. It is but a promise at the very best that something shall be done, not the assertion that it has been done. If it has been done, the promise that it shall be done is vain and meaningless; the two ideas are utterly inconsistent. The concluding sentence, “but all the money advanced you will be taken from your share of the estate,” is not of the slightest value in this connection. It proves nothing as to an existing trust, unless there is proof of an actual advancement appropriated to the purchase of the subject of the trust, and of this, as we have already shown, there is no proof. Had the $2,3 00 paid for the land when it was bought been charged as an advancement, or had it been shown that the money charged on June [452] 8,1876, had specifically been appropriated to the purchase of the land, the appellee’s claim -would have been made out, but the absence of any such proof is simply fatal to his case. The decree of the court below is reversed at the cost of the appellee, and the record is remitted for further proceedings.