Payne's Adm'R v. Patterson's Admr's

• Decision Date: 16 November 1874
• Citation: 77 Pa. 134
• Parties: Payne's Adm'r <I>versus</I> Patterson's Adm'rs.
• Court: Pennsylvania Supreme Court

77 Pa. 134

Payne's Adm'r versus Patterson's Adm'rs.

Supreme Court of Pennsylvania.

October 15, 1875.

November 16, 1874.

October 15th 1875.

Before AGNEW, C. J., SHARSWOOD and MERCUR, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 204 J. Glenn (with whom was S. A. McClung), for plaintiff in error.—Patterson's advance of money on the security of an absolute conveyance was a mortgage: Harper's Appeal, 14 P. F. Smith 315; Houser v. Lamont, 5 Id. 311; Maffitt v. Rynd, 19 Id. 380; Sweetzer's Appeal, 21 Id. 264; Danzeisen's Appeal, 23 Id. 65; Haines v. Thomson, 20 Id. 434; McGinity v. McGinity, 13 Id. 38.

J. M. Stoner (with whom was J. F. Edmundson), for defendants in error.—Equity will not decree a purchaser to be a trustee when there is nothing more than the breach of a parol agreement, fraud to make one a trustee ex maleficio, must be fraud in the original contract: Jackman v. Ringland, 4 W. & S. 150; Barnet v. Dougherty, 8 Casey 372; Kellum v. Smith, 9 Id. 158; De France v. De France, 10 Id. 385; Sample v. Coulson, 9 W. & S. 66; Brawdy v. Brawdy, 7 Barr 157; Poorman v. Kilgore, 2 Casey 365; McBarron v. Glass, 6 Id. 135; Hogg v. Wilkins, 1 Grant 71; Kisler v. Kisler, 2 Watts 323; Sidle v. Walters, 5 Id. 391; Robertson v. Robertson, 9 Id. 32; Haines v. O'Conner, 10 Id. 320; Fox v. Heffner, 1 W. & S. 376; Pearsoll v. Chapin, 8 Wright 11; Bennett v. Pullmer, 13 Id. 155; Todd v. Campbell, 8 Casey 250; Nixon's Appeal, 13 P. F. Smith 282; Church v. Ruland, 14 Id. 441; McGinity v. McGinity, 13 Id. 38; Williard v. Williard, 6 Id. 125; Harris v. Harris, 20 Id. 171; Seylar v. Carson, 19 Id. 88; Beck v. Parker, 15 Id. 262; O'Hara v. Dilworth, 22 Id. 397; Kistler's Appeal, 23 Id. 393. Upon the point that the transaction was not a mortgage, they cited also Pennsylvania Life Insurance Company v. Austin, 6 Wright 257.

Mr. Justice MERCUR delivered the opinion of the court, November 16th 1874.

This is an action of assumpsit to recover a portion of the money received by the defendant's intestate, on a sale of real estate. The right to recover must rest on establishing that he held the land either as a trustee or as a mortgagee.

There is no allegation that McClane purchased at sheriff's sale under any arrangement with the plaintiff's intestate. There was no understanding between them that Payne should have any interest in the land or any share of the proceeds of a subsequent sale. Payne paid no part of the purchase-money. Hence there was no resulting trust; nor was there a trust ex maleficio. McClane then took and held the title unclogged with any equities in favor of Payne. McClane had an undoubted title. Payne had no pretended title. Such were the relative positions of those parties when the agreement was entered into between them and Patterson.

It is claimed by the plaintiff that this agreement as found by the jury establishes a valid mortgage in favor of Payne. It is admitted that Patterson did not enter into the agreement with any intent to cheat or defraud him. The plaintiff rests her right on the ground of contract. She contends that inasmuch as Patterson accepted the conveyance from McClane under the parol agreement proved, it establishes a mortgage in favor of Payne. A mortgage on what? It could be on his interest in the land only. We have already shown that he had no interest whatever in the land. He had no estate therein which could be bound by a mortgage, or to which a mortgage could attach. It is claimed, however, that this agreement between the three parties passed to him an interest in the land. We answer, that was a mere parol agreement as to him, and the defendant interposes the Statute of Frauds. It is unlike the case of Houser v. Lamont, 5 P. F. Smith 311, where the only party who could plead the statute waived it, and came into court to establish the parol contract.

It will be observed that there was no agreement to reconvey to McClane. It was that if Payne paid the amount of the purchase-money and interest, Patterson should convey to him. It was not conditional between the grantor and grantee. Under no circumstances was it to revert to the grantor. It was not conditional with the only person who had any interest to convey. It was not a mortgage as to McClane, and could not be as to Payne, to whom no return could be made. A mortgage is a defeasible deed....