Neilson v. Equitable Trust Co.

Opinion by W. D. Porter, The affidavit of defense does not deny that, at the time the taxes in question were assessed and became a charge upon the land, the title as registered and recorded showed the defendant to be the owner of an absolute estate in fee simple in the said land; it is not denied that the taxes were properly assessed in the name of the defendant, nor that the plaintiff was subsequently .compelled to pay them. These facts established a prima facie right in the plaintiff to be reimbursed by the defendant for the payment so made: Caldwell v. Moore, 11 Pa. 58; Hogg v. Longstreth, 97 Pa. 255; King v. Mount Vernon Building Association, 106 Pa. 165; The Commonwealth Nat. Bank v. Shoemaker, 13 W. N. C. 255; Commonwealth v. Mahon, 12 Pa. Superior Ct. 616. The allegation of the affidavit relied upon by the defendant, as sufficient to prevent judgment is: “ Said defendant was a mere dry trustee, and had no interest in said premises, except to hold the bare legal title thereto, and transfer the same in accordance with the terms of said building contract, or as directed by said Wells & Company and said Wade.” The affidavit in its opening sentence alleged that Wells & Company and Wade had entered into a building contract, which involved the land in question, and that said agreement had been filed in tbe prothonotary’s office. The terms of the agreement are not set forth in the affidavit, nor is a copy of that agreement printed in the paper-book of the appellant. It is not alleged that the defendant was a party to the agreement, although it is asserted that Wade conveyed the property to the defendant in accordance with the terms thereof. The affidavit does not state what covenants the defendant entered into when it accepted and recorded a conveyance in fee of the land which rendered it “ a mere dry trustee; ” nor does it state with whom the defendant entered into such covenants. If the defendant had entered into any contract or agreement which changed the [639] character of the title under which it apparently held, it was incumbent upon it to set forth in its affidavit the specific terms of that agreement; and it was for the court to determine the character of the estate arising out of those covenants. The assertion of the affidavit that the defendant was a mere dry trustee was a conclusion of law, and the facts upon which that conclusion was based not having been stated, the affidavit was insufficient. A trustee who accepts an absolute conveyance of the land, registers and records his deed, and under some secret trust assumes the performance of active duties, cannot escape liability for taxes by the mere assertion that he is a dry trustee: Landreth v. McCaffrey, 17 Pa. Superior Ct. 272 and 276. When a responsible trust company, for its own profit, holds itself out to the world as the absolute owner of land, by accepting and registering and recording a deed, all parties who deal with the title have the right to assume that the registered and recorded owner is legally liable for the taxes, unless they have notice to the contrary. The facts presented by this affidavit do not bring the case within the scope of the decision in Rawle v. Renshaw, 15 Pa. Superior Ct. 488, in which case there was a written declaration of trust, of which the plaintiff had express notice. The judgment is affirmed.