Knecht v. Reichard

Opinion by Trexler, J., The purchaser of the property at sheriff’s sale brought his action to recover possession under the Act of April 20, 1905, P. L. 239. In his petition he sets forth the facts in regard to his acquisition of the property and that the defendant is in possession, as husband of the defendant in the execution by virtue of which the property was sold. In the answer the husband states that he does not claim possession as [276] husband of the defendant in the execution, but that he, as her husband was in bad health and was “being tormented, worried and nagged” by his wife and had the deed put in his wife’s name to hold the legal title for him, and thus there was created a resulting trust in his favor. He alleges the subsequent desertion of the wife. He denies the jurisdiction of the court, but prays a jury trial as to the various issues of facts raised in the petition and answer. The demand for jury trial placed the matter before the trial court upon one issue, and one •alone and that was whether under the facts, the deed given to the wife passed the entire title to her, or whether there was a resulting trust in her husband, the appellant. At the trial the court held that the evidence to show a resulting trust was insufficient, and directed the jury to find for the plaintiff. In this, the learned trial judge was clearly within his rights and considering the testimony, we cannot see how he could have come -to any other conclusion. As stated in Olinger v. Shultz, et al., 183 Pa. 469, the evidence to establish a resulting trust must be clear, precise, convincing and satisfactory. It is not enough that it satisfies the jury, it must also satisfy the mind and .conscience of the court as a chancellor sitting and reviewing the testimony, and if the evidence fails to satisfy in this respect, the evidence must be withdrawn from the jury: Haupt v. Unger, 222 Pa. 439; Dollar Saving Fund and Trust Co. v. Union Trust Co. 223 Pa. 286; Lutz v. Matthews, 37 Pa. Superior Ct. 354; Earnest’s App., 106 Pa. 310. The story is, that the appellant was induced by his wife, by persistent persuasion, “nagging” as he calls it, to make the deed for the property (about to be purchased with his money) in her name, “so that she might get a home,” “that she should have a home, if anything should happen to him,” and that they might, as they thought, evade the payment of the collateral inheritance tax. These were the reasons that induced the giving of the deed to the wife, but there is not a word in the testi [277] mony which shows any understanding between the parties that the deed should not convey the absolute title to the wife, or that there were any conditions or trust imposed upon her in the title acquired by her; as the court below said, “the man gave the property to his wife, he paid for it, he paid the taxes, and he made the repairs, and he wants now the court and the jury to give him his property back because there is a desertion.” gome point is tried to be made that the deed was delivered to the husband and retained by him, but we can see nothing in this position. He took the deed from the grantors* therein, in which deed by his direction, the wife’s name appeared as grantee, and put it on record, thus giving notice to.every one that it was her property. He retáined possession of the paper during the time they lived together, when she left him, she took it with her. The defendant in his answer denied the jurisdiction of the court and at the same time asked for a jury trial. Having had his day in court and the conclusion drawn from the facts as they appeared at the trial being adverse to him, he cannot with fairness now raise a merely technical objection. It appears that the Act of 1905, P. L., 239, gection 5, does allow parties claiming by a right in title other than that set forth in the petition to aver such right with particularity in the answer and to have the facts submitted to a jury and irrespective of the fact whether the resulting trust is claimed under the title of the defendant in the execution or not, the appellant having chosen his forum, cannot now question the right of the court to determine the matter, even if he might in the first place, have argued with some force that he could not be compelled to submit to a trial under the act. His demand for a jury trial brought him within the. express provision of the act. .We see no force in any of the,"assignments, of error, they are overruled' and the judgment-1 is -affirmed.. Appellant for costs. '