Brown v. Dysinger

• Decision Date: 15 June 1829
• Citation: 1 Rawle 408
• Parties: BROWN v. DYSINGER and another.
• Court: Pennsylvania Supreme Court

1 Rawle 408

BROWN v. DYSINGER and another.

Supreme Court of Pennsylvania.

June 15, 1829

APPEAL.

Parol evidence of declarations, made by a purchaser at sheriff's sale, that he was bidding for another, is admissible to establish a trust for the person for whom the purchaser declared he was bidding.

A tender of money in behalf of an infant, made by his uncle the father being dead, but the mother living, held to be good, although the uncle had not then been appointed guardian.

A tender, partly in silver coin, and partly in bank notes offered to be converted into silver, but the opposite party refusing to accept any money, held to be good.

The words " any earthly property, " in a will if they appear from the context not to have been intended to include real estate, will be confined to personal property.

If a naked power to sell be given to executors, the land in the mean time descends to the heir, and an ejectment may be brought for it in his name.

A lease, unfairly obtained from a party in possession of the land, will not prevent the lessee from contesting the title of the lessor.

APPEAL from the decision of the Chief Justice, at a Circuit Court held for Mifflin county in April, 1829.

Ejectment for a tract of land, claimed by Samuel Brown, a minor, suing by his guardian, William Brown, as heir at law to his father, Samuel Brown, against Jacob Dysinger and David Walker.

On the trial it appeared, that the premises in question having been taken in execution on a Levari Facias against Daniel Shortel, were exposed to sale by the sheriff when David Walker, one of the present defendants publicly declaring, that he was bidding for Samuel Brown, (the father of the plaintiff, who was an infirm man, in poor circumstances, and at the time resident on the land,) became the purchaser for the sum of nine hundred dollars. That sale, however, was set aside on some ground, not material to the present controversy, and a second sale afterwards took place, when David Walker repeated the public declaration, that he was bidding for Samuel Brown, and again became the purchaser for ten hundred and fifty dollars. A deed was executed to David Walker by the sheriff, bearing date November 22d, 1822.

The plaintiff's counsel called William Zeigler, to prove the declarations made by David Walker at both the sales, to which the defendants' counsel objected, but the court, on argument, permitted the evidence to be given; and after examining Zeigler, and several other witnesses to that point, a tender of the purchase money, with interest, was proved to have been made to Walker by the uncle of Samuel Brown, who was not then his guardian, though subsequently appointed by the Orphans' Court. The mother of Samuel Brown was then living. The tender was made partly in bank notes, and partly in silver coin. Walker refused to receive it; saying, the paper money was no better than rags. The uncle offered to convert it into money, but David Walker still refused. The defendants gave evidence to disprove that of the plaintiff, in regard to the transactions at the time of the sale, and further gave in evidence the will of Samuel Brown, which, so far as is material to the explanation of this case, was in the following words:--

" Respecting any earthly property which God hath been pleased to give me, and which I may own at the time of my dissolution, I order as follows, viz.-- That all my property be brought to public sale as soon after my death as may be deemed proper, and all my just debts paid out of the proceeds thereof, after discharging the funeral expenses, and the remainder to be appropriated to my dearly beloved wife Agnes, and now surviving child, Samuel, if any remain; and do appoint my beloved wife and Calvin Blythe, Esq. to be the executors of this my last will, and that it may be executed according to the genuine intent thereof. In witness," & c.

They likewise gave in evidence a lease of the premises from David Walker to Samuel Brown, dated December 30th, 1822. The plaintiff, to rebut the last mentioned evidence, called a witness, to show, that David Walker had threatened to turn Samuel Brown out of possession, if he did not execute the lease: That Brown was then very sick with a consumption, and died some time in the following month of August.

The jury, under the direction of the court, found a verdict for the plaintiff, and a motion for a new trial on the part of the defendants being denied, the present appeal was entered. The reasons filed in support of the motion were as follows: --

" 1. Because the court admitted the parol evidence offered by the plaintiff, contrary to the provisions of the statute of frauds and perjuries.

2. The court erred in the construction of the will of Samuel Brown, in deciding, that the plaintiff was entitled to recover.

3. The court erred in deciding, that this case was not within the statute of frauds and perjuries.

4. The court erred in deciding, that William Brown had authority, on the 3d of January, 1824, to make a tender to David Walker for Samuel Brown, a minor.

5. The court erred in refusing to instruct the jury, that the acceptance of the lease given in evidence, by Samuel Brown, the father of the plaintiff, was a release and abandonment of his claim, under the alleged parol contract.

6. That the verdict is against the law, the evidence, and the justice of the case.

7. That the tender in bank notes was not such a tender as would entitle the plaintiff to recover."

The argument was conducted by Potter and Blythe, for the appellants.--Theeeeee first and third exceptions may be taken together. They present the main question. The act of March 21st, 1772, for the prevention of frauds and perjuries, is explicit, that no estate in lands greater than a lease, not exceeding three years, can be created otherwise than in writing. No parol declarations of trust in the case of a larger estate are of any value. It is, however, admitted, that there are two exceptions. 1. The case of a resulting trust; and 2. The case of fraud. By a resulting trust, we understand a purchase by A. with the money of B. If A. takes a conveyance of the legal estate to himself, and it is clearly and unequivocally proved, that the purchase was made by him with the money of B., he becomes the trustee of B. without any written acknowledgment or declaration of the trust. But this was not the case in the present instance. Walker had no money of Samuel Brown's in his hands. Brown was a poor man. Walker had no claim on him to furnish the amount paid to the sheriff, by way of reimbursing himself for the purchase; and if he had possessed any evidence to charge Brown, the latter was unable to raise the money. The great rise in the value of the property has led the friends of the minor to come forward, after the death of the father, make a tender, and bring the ejectment.

It is not a case of fraud either in fact or law. The case of Thompson's Lessee v. White, 1 Dall. 424, which will be cited against us, was one of plain fraud. To induce the wife to execute a deed, the husband made the most solemn promise, that he would by will or otherwise settle an estate in a manner previously agreed upon, calculated for the benefit of the wife's relations. The husband, surviving the wife, retained the property as his own, and died without making such provision. This was a direct fraud upon the wife and those who were intended to take after the husband's death. But what fraud in respect to Brown can be found in the conduct of Walker? Did Brown contemplate bidding himself, and was he prevented from doing so by the declarations supposed to have been made by Walker? If Walker had not bid at all, would Brown have been a sufferer? Would he have sustained any loss whatever? How then can he or his heir be received at a distant time to gain by an act, the total omission of which would have been no loss to him? The conveyance of the sheriff to Walker, to his own use, in fee, was an act of legal notoriety, and amounted to constructive notice to Brown that Walker took an absolute estate to himself; but he makes no application to the court, nor personally to Walker to have his imaginary trust declared. So far from it, that, on the 30th of December, about six weeks after the sale, he takes a lease of the very land in question from Walker. This forms our fifth exception, and it is conclusive It is impossible to suppose that Brown had the most remote idea of the land belonging to himself, when he thus acknowledged himself to hold it as the tenant of Walker. The evidence, which in all cases where an attempt is made to raise a trust by parol, ought to be full, clear, and above all doubt, was confused and unsatisfactory as to the declarations of Walker, particularly at the second sale. (The counsel on both sides remarked minutely in the testimony.) But were we to give the fullest effect to the plaintiff's testimony on this head, it could not amount to more than a contract on the part of Walker; for the breach of which, Brown, if he could make out his case, would be entitled to recover damages. Hughes v. Moore, 7 Cranch, 176. Crop v. Norton, 2 Atk. 74. 1 Bro. Ch. Ca. 92. 2 Johns. Ch. 409. 2 Mad. Ch. 108, 109. Wallace v. Duffield, 2 Serg. & Rawle, 526. Jones v. Peterman, 3 Serg. & Rawle, 546. On the fourth exception, they denied the validity of the tender made on the 3d of January, 1824, by William Brown, the uncle of Samuel Brown. No person had, at that time, been appointed by the Orphans' Court guardian of the minor. The mother, the natural guardian, was living. The uncle was appointed guardian by the Orphans' Court on the twentieth of the same month. Till then, he had no authority to act on the part of the minor. The tender, therefore, was the act of a...