McKee v. Jones

• Decision Date: 04 October 1847
• Court: Pennsylvania Supreme Court
• Parties: McKEE et ux. <I>v.</I> JONES.

6 Pa. 425

McKEE et ux. v. JONES.

Supreme Court of Pennsylvania.

September 23, 1847.

October 4, 1847.

Sept. 23.

IN error from the District Court of Allegheny county.

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Metcalf and Loomis, for plaintiff in error.—The acts of the plaintiff in procuring the will were not competent evidence to prove that the trust alleged was created afterwards. And the declarations of the trust afterwards, and the evidence to explain the delay, were equally incompetent and irrelevant. Marriage being a valuable consideration, the husband becomes a purchaser, and to be affected must be charged with notice: 2 Kent's Com. 131, 133; Bouslaugh v. Bouslaugh, 17 Serg. & Rawle, 363; 4 Cruise, 28, 502; 1 Cruise, 512, 369; Flag v. Mann, 2 Sumn. 560; Sutliff v. Forgey, 1 Cow. 89; Waller v. Armistead, 2 Leigh, 14; Coutts v. Greenhow, 2 Munf. 363. Whatever may be the rule as to reading the opinion of this court to the jury, certainly there can be no question as to the impropriety of using the statement of the facts by the judge to the jury, who cannot fail to be biassed by it. It is in a measure prejudging the case.

Williams and Dunlop, contrà.—Delay has always great weight with a chancellor; and as this is an equitable proceeding, we were bound to explain the apparent laches. The evidence of declarations in support of testimony is admissible in corroboration when that testimony is attacked: Craig v. Craig, 5 Rawle, 91. At all events, these are matters of discretion; Sharp v. Emmet, 5 Whart. 288. That there was such a trust as the courts will enforce, has been decided: Story's Eq. § 192, 385; Hoge v. Hoge, 1 Watts, 163, 214; Gaullaher v. Gaullaher, 5 Watts, 200. To make a conveyance fraudulent as to creditors, the debtor must be the owner: Gilmore v. N. A. Land Co., 1 Pet. C. C. R. 460. The reading of the opinion of this court has been decided to be proper: Noble v. McClintock, 6 Watts & Serg. 58. There is no rule that the husband by marriage becomes such a purchaser as is here contended for: Hinton v. Hinton, 2 Ves. 631; 4 Kent's Com. 43; Chew v. Commissioners, 5 Rawle, 160.

Oct. 4. BURNSIDE, J.

This ejectment engaged the attention of this court on a former occasion, and will be found reported in 3 Barr, 497. The evidence of the parties was substantially the same then as now. On the authority of numerous cases, this court then held that it ought to be left to the jury to determine under the evidence, that the mother added the codicil to create the trust, and if the daughter assented to the trust it still exists. The further argument has satisfied us that the case bears a strong resemblance to the principle settled in Hoge v. Hoge, 1 Watts, 214. Where the trust owes its validity to the fraud of the devisee, the trust arises ex malificio, in which, equity turns the holder of the legal title into a trustee. The defendant below excepted to the plaintiff's evidence as it was presented to the court; and all the bills of exception have been assigned for error. The first five bills belong to the same class; the objections were incompetency and irrelevancy. We think the evidence was both competent and relevant. In 2 Freeman, 34, where a testator having settled lands on his son for life, and having discoursed about altering his will, for fear there should not be enough besides to pay certain legacies to his daughter, was told by the son that he would pay them if the assets were deficient; it was decreed, that having suffered his father to die in peace on a promise which had prevented him from altering his will, he should pay them. What is this case but an engagement by the daughter to the mother on her death-bed, when the codicil was signed, that the devise in the codicil was in trust for her brother. The admission of this evidence to the jury is one of the points strongly urged as incompetent for the purpose offered. We believe it admissible on the principle settled in Hoge v. Hoge, and the cases there cited.

The fifth and sixth bills of exceptions. This evidence was to account for the delay in bringing the ejectment, and to show that the plaintiff was largely indebted, and much absent from the neighbourhood. It is true the evidence was of little moment in the case. It did not make title, and was but a small circumstance to strengthen the title exhibited. It was only offered to account for the delay in bringing the action. An ejectment in Pennsylvania being in some measure in the nature of a bill in equity, it is well to account for delay in all equitable actions. We cannot say it was error in the court to admit the evidence for the purpose offered.

Seventh bill of exceptions and assignment of error. After the defendants had closed their evidence, the plaintiffs called a witness and offered to prove that Robert Ackleson, (whose testimony had been first taken by the plaintiff on a commission to Kentucky, and read by the plaintiff, and afterwards taken on a commission by the defendant, in which he contradicted his first evidence,) told him to divide the grain for the shares of...