Chamberlain v. Maynes

• Decision Date: 25 January 1897
• Docket Number: 391
• Citation: 180 Pa. 39,36 A. 410
• Parties: Joseph Chamberlain, Mary L. Sharpless and William H. Keichline v. Philip L. Maynes, Appellant
• Court: Pennsylvania Supreme Court

36 A. 410

180 Pa. 39

Joseph Chamberlain, Mary L. Sharpless and William H. Keichline v. Philip L. Maynes, Appellant

No. 391

Supreme Court of Pennsylvania

January 25, 1897

Argued January 7, 1897

Appeal, No. 391, Jan. Term, 1897, by defendant, from judgment of C.P. No. 4, Phila. Co., Sept. Term, 1894, No. 728, on verdict for plaintiffs. Affirmed.

Ejectment for a lot of land, 610 South street, in the city of Philadelphia. Before WILLSON, J.

At the trial it appeared that the title to the land was originally in Philip Kelly who, on March 3, 1875, made a deed of trust to Andrew R. Maynes, the habendum clause of which is as follows:

"To have and to hold the said several messuages and lots or pieces of ground above described, hereditaments and premises hereby granted or mentioned and intended so to be with the appurtenances, unto the said Andrew Maynes, his heirs and assigns to and for the only proper use and behoof of the said Andrew Maynes, his heirs and assigns forever. In trust nevertheless for the uses following and none other, that is to say, for the sole and separate use of the said Philip Kelly and Susan his wife for and during the term of their and each of their natural lives, and for and during the terms of the natural life of the survivor of them, and so as they alone or such person as they shall appoint shall take and receive the rents, issues and profits thereof, and for and after the decease of the said Philip Kelly and Susan his wife, in trust for the use of the daughter of the said Philip Kelly and Susan, his wife, Mary A.K., who had intermarried with John Reilly, and for James Maynes, Philip Maynes, and Susan Maynes, minor children of Susan A. R. Maynes, daughter of the said Philip Kelly and Susan his wife, who had intermarried with the said Andrew R. Maynes, so that the said Mary A. K. Reilly shall be entitled to receive one-half of the rents, issues and profits of the said above described several messurages and tenements and lots or pieces of ground thereto belonging, and so that the said children of the said Susan A. K. Maynes, deceased, shall be entitled to receive the remaining one-half of the rents, issues and profits of the said above described several messuages or tenements and lots or pieces of ground thereto belonging, with power to the said Andrew R. Maynes after the death of the said Philip Kelly and Susan his wife, to sell or otherwise dispose of and to make, execute and deliver a good and sufficient deed or assurance in the law and convey in fee simple such portion as may be by partition and division allotted to the said Mary A K. Reilly, such partition or division to be made only when the said Mary A. K. Reilly may be desirous of disposing of her said interest in and to the said above described premises, or in the event of such partition and division could not be made without destroying or spoiling the whole then with power to the said Andrew R. Maynes, his heirs and assigns, to sell and dispose of the undivided one-half interest of the said Mary A. K. Reilly in and to the said above described premises at any time she may appoint and direct, and to make, execute and deliver a good and sufficient deed or assurance in the law to the purchaser thereof. And it is provided that when the youngest child of the said Susan A. K. Maynes deceased, shall arrive at the age of twenty years, with power and authority to the said Andrew R. Maynes, his heirs and assigns to convey to each of the said children by good and sufficient deeds and assurances in the law after partition and division made amicably and according to law, his or her proportionate part of the said premises, and to the said Mary A. K. Reilly her proportionate part of the said premises, provided further that in case such partition and division cannot be made without destroying or spoiling the whole, then with power to the said Andrew R Maynes, his heirs and assigns to sell the above described messuages and tenements and lots or pieces of ground thereto belonging, and to make and execute and deliver good and sufficient deeds or assurances in the law to the purchaser or purchasers thereof, and to pay over to the said Mary A. K. Reilly, her heirs and assigns, her proportionate share of purchase money, and to the said James Maynes, Philip Maynes and Susan Maynes, children of the said Susan A. K. Maynes, deceased, their heirs and assigns, their and each of their proportionate part of the said purchase money."

April 18, 1883, Mary Reilly conveyed her interest in the lot to Mary C. Keichline. October, 1884, Mary Reilly died. January 5, 1891, Susan Kelly, wife of Philip Kelly, died. August 18, 1891, Mary C. Keichline died, leaving her realty to the plaintiffs. The defendant is the surviving child of Susan A. K. Maynes.

The court gave binding instructions for plaintiff, subject to the point reserved "whether under all the evidence the plaintiffs are entitled to recover."

Verdict and judgment for plaintiff.

Error assigned was in entering judgment on verdict.

Judgment affirmed.

F Carroll Brewster, with him D. J. Callaghan, for appellant. -- The deed created an active trust: Barnett's App., 46 Pa. 399; Kuhn v. Newman, 26 Pa. 227; Rife v. Geyer, 59 Pa. 396; Fidelity T. Co.'s App., 5 W.N.C. 513; Gaskell's Est., 6 W.N.C. 84; Cooper's Est., 150 Pa. 576. Mary could not convey the title without the trustee. 2 Perry on Trusts, sec. 661; Lancaster v. Dolan, 1 Rawle, 231; Thomas v. Folwell, 2 Whart. 11; Dorrance v. Scott, 3 Whart. 309; Wallace v. Coston, 9 Watts, 137; Stahl v. Crouse, 1 Pa. 111; Rogers v. Smith, 4 Pa. 93. The conveyance by the daughter passed no title: Shankland's App., 47 Pa. 113; Horwitz v. Norris, 49 Pa....