Kraft v. Smith
| Decision Date | 03 October 1887 |
| Docket Number | 81 |
| Citation | 11 A. 370,117 Pa. 183 |
| Parties | JACOB KRAFT AND PHILIP KIMMEL v. PETER SMITH |
| Court | Pennsylvania Supreme Court |
Argued May 23, 1887 [Copyrighted Material Omitted]
ERROR TO THE COURT OF COMMON PLEAS OF BLAIR COUNTY.
No. 81 January Term 1886, Sup. Ct.; court below, No. 108 April Term 1883, C.P.
This was an action of ejectment brought on April 20, 1883, by Peter Smith against Jacob Kraft and Philip Kimmel to recover a lot of ground in Altoona.
On April 27, 1878, the lot in dispute was sold at sheriff's sale as the property of Peter Smith, the plaintiff in the ejectment, to Lawrence Kimmel, who received the sheriff's deed therefor on August 26, 1878. At the date of this suit Philip Kimmel was in possession as vendee of Lawrence Kimmel of one half the lot, and Jacob Kraft was the tenant of Lawrence Kimmel of the other half.
On the trial, in rebuttal of the defendant's case, made out by showing title under the sheriff's sale on a valid judgment against the plaintiff, the latter adduced testimony tending to show: That at and immediately before the sheriff's sale of his property Lawrence Kimmel, the purchaser, made a verbal arrangement with the plaintiff under which Kimmel was to purchase and, on repayment by the plaintiff of the amount of the bid and certain other claims against him which Kimmel was to discharge, Kimmel was then to reconvey the property to the plaintiff; that this agreement was to be reduced to writing and signed by the parties the evening of the day of the sheriff's sale at the office of Smith's attorney, but that Kimmel the purchaser did not attend and the agreement was not afterwards prepared or executed; that other persons who had intended to bid were induced by information of the said arrangement to refrain that on the day of sale, Smith procured the railroad tickets for the party, including Lawrence Kimmel, to attend the sheriff's sale at Hollidaysburg and return, and had paid for the lunch for the party; that the property was knocked down for $335 to Smith's attorney, who, relying upon the arrangement, directed the sheriff's deed to be made to Kimmel, and that the property was then worth from $1,200 to $1,600; that soon afterwards Smith removed with his family to Pittsburgh, leaving his son-in-law Storm and wife in possession, and Kimmel got possession in November, 1878; that in July or August, 1879, after Philip Kimmel had purchased half of the lot, but before he had made any improvements on it, the plaintiff made a tender of $600 to Lawrence Kimmel and demanded a reconveyance which was refused, that sum being sufficient as claimed by Smith to reimburse the purchaser.
On the day of trial, the plaintiff renewed his tender of $600 to the defendants and on its refusal paid the same into court.
The character of the testimony relating to the arrangement referred to, to the agreement which was to have been put in writing, and to the terms upon which the reconveyance was to have been made, is shown in the opinion of this court.
On the part of the defendant, testimony was adduced tending to show that Lawrence Kimmel purchased the property primarily to save a claim he held against the plaintiff; that on the day of the sheriff's sale he had verbally agreed to give the plaintiff a chance to re-purchase, but that he was to be paid $25.00 per month and to receive the rent, $8.00 per month in addition; it was not arranged that the agreement was to be reduced to writing; that no payments either by Smith or by the tenant were made; that about Christmas, 1878, Mrs. Smith in behalf of her husband saw Kimmel and told him that they had failed in their agreement, but that if he would wait till Easter following they would pay the whole amount, and if they did not then pay they would let the property go; that no payments at all were ever made and no tender, until in June, 1879, when a part of the lot had been sold to Philip Kimmel who had then nearly completed a dwelling house upon it, when the $600 tender was made and refused.
Following are certain points of the plaintiff with the answers thereto:
1. If the jury find that before the sheriff's sale a verbal agreement was entered into between Lawrence Kimmel and Peter Smith, that Kimmel should buy the property in at sheriff's sale for Smith, to be reconveyed to Smith when he should repay Kimmel the purchase money paid by Kimmel and other debts of Smith paid by Kimmel; that this agreement should be reduced to writing and signed before Kimmel should obtain the sheriff's deed; that Smith, on the faith of above understanding, paid the railroad fares of Mr. Heinsling and Lawrence Kimmel and his son Philip to and from Hollidaysburg, while attending the sheriff's sale; that the property was knocked down to Mr. Heinsling as the attorney for Smith, with the understanding that the above agreement was to be carried into effect; that Kimmel, by reason of this understanding, and by representing that he intended to buy the property for Smith, prevented bidding, and obtained the property at a price much below its value; that Kimmel afterwards obtained the sheriff's deed without having entered into the written contract; that some time after the sheriff's sale Smith or his attorney tendered to Kimmel an amount sufficient to reimburse him the money he had advanced, and demanded a reconveyance of the property; that Kimmel declined the tender, refused to reconvey, and asserted title absolutely in himself; then Kimmel is a trustee ex maleficio for Smith, and the plaintiff is entitled to recover.
Answer: If all the facts asserted in this point are proven to your satisfaction, this point is affirmed. You will bear in mind, however, that fraud is never to be presumed, but always to be proved by satisfactory evidence.
6. The alleged arrangement between Mrs. Smith and Kimmel that the money should be repaid to Kimmel at or about Easter of 1879, and if not paid by that time then Smith to make no further claim, even if such arrangement were proved, is of no effect, because not made with Smith himself, nor by his authority, and because there was no consideration for it.
Answer: Affirmed.
7. If the jury find that it was agreed between Smith and Kimmel at or about the time of the sheriff's sale, that the property should be knocked down to Heinsling, and the sheriff's deed made to Kimmel; that Kimmel should pay the purchase money, and the record debts of Smith; that Kimmel should hold the property of Smith until Smith should repay the money advanced by Kimmel, and then reconvey to Smith, then the transaction was a mortgage, and if Smith tenders to Kimmel an amount sufficient to pay him the amount advanced, with interest, allowing for what Kimmel received for rents on the property, the plaintiff is entitled to recover.
Answer: Affirmed; if the jury are satisfied that all the facts alleged have been proven.
Following are certain points of the defendants with the answers thereto:
1. That under the act of assembly of April 22, 1856, all declarations or creations of trusts in lands are required to be in writing and signed by the party holding the title therefor, else are void; except resulting trusts such as the law implies.
Answer: Denied as applying to this case. 1
8. That if the testimony of Philip Kimmel, Lawrence Kimmel and Mrs. Mary Soler is believed, viz.: "that Mrs. Smith, representing her husband, stated that if they did not pay or reimburse Kimmel by Easter they would not want the property," and the money was not paid before that time, or the 1st of May to which Lawrence Kimmel extended it, that this would be evidence of Smith having abandoned the purpose of redeeming the property and the verdict must be for the defendants.
Answer: This point raises a question of fact for the jury. Its weight is entirely for them.
11. That the evidence in the case fails to make out such a fraud upon part of Lawrence Kimmel as to invalidate the sheriff's sale, and the verdict must therefore be for defendants.
Answer: Refused.
The court, ROBERT L. JOHNSON, P.J., in the charge to the jury, reviewed the testimony relating to the arrangement under which Lawrence Kimmel became the purchaser, and the knowledge of it on the part of other proposed bidders and proceeded:
It is alleged here on the part of the plaintiff that the evidence shows that this arrangement prevented Karl Olmes from purchasing, prevented another party, Richard Shontz, from attending the sale, and that the property was bought at only a fraction of its real value, in pursuance and in consequence of this arrangement.
Now, these are alleged as facts and evidence to convince the jury, when taken with the admission of Philip Kimmel to Mr. Olmes of his intention and purpose; this is presented to the jury, and it is claimed by the counsel for the plaintiff that it establishes such fraud and artifice on the part of the defendant as would vitiate the sale, and render him a trustee -- as would defraud Peter Smith and render Lawrence Kimmel a trustee ex maleficio for him, to hold the property in trust for him.
Now gentlemen, in pursuance of that theory, the plaintiff has submitted a point to the court to be presented to the jury; and you will consider this, as you...
To continue reading
Request your trial