Tanney v. Tanney

• Decision Date: 30 December 1893
• Docket Number: 265
• Citation: 28 A. 287,159 Pa. 277
• Parties: Tanney et al. v. Tanney, Appellant
• Court: Pennsylvania Supreme Court

28 A. 287

159 Pa. 277

Tanney et al. v. Tanney, Appellant

No. 265

Supreme Court of Pennsylvania

December 30, 1893

Argued November 7, 1893

Appeal, No. 265, Oct. T., 1893, by defendant, Lewis H Tanney, from judgment of C.P. No. 2, Allegheny Co., Jan. T 1891, No. 754, on a case stated, for plaintiffs, William H. Tanney et al.

Ejectment and case stated.

The facts appear by the opinion of the Supreme Court.

The court entered judgment for plaintiffs in an opinion by WHITE, J.

Errors assigned were (1) entry of judgment for plaintiffs; (2) refusal of judgment for defendant.

The judgment is affirmed and appeal dismissed at costs of appellant.

Geo. H. Quail, for appellant. -- The purchase of a trustee at his sale is not void, but only voidable, as a constructive trust, at the option of the cestui que trust, and in such cases time is to be counted from the date of the transaction and not from the date of actual notice: Dowing v. Garard, 24 Pa. 52; Fleming v. Culbert, 46 Pa. 498; Campbell v. Boggs, 48 Pa. 524.

Plaintiffs ratified and confirmed the sale to defendant by receiving and accepting the surplus proceeds. In this they have estopped themselves from questioning its validity: Adlum v. Yard, 1 Rawle, 163; Trustees of Bank of U.S., 2 Pars. 110; Furness v. Ewing, 2 Pa. 479; Wilkins v. Anderson, 11 Pa. 399; Smith v. Warden, 19 Pa. 424; Duff v. Wyncoop, 74 Pa. 300.

If the land owned by tenants in common be sold for taxes, and one of them, before the time of redemption has expired, buy it from the purchaser at the tax sale, there is a constructi vez trust in favor of his co-owners; but, if he buy it after the time of redemption for his own use, there is no such trust in favor of his co-owners: Lewis v. Robinson, 10 Watts, 354; Kirkpatrick v. Mathiot, 4 W. & S. 251; Duff v. Wilson, 72 Pa. 442; Roy v. Townsend, 78 Pa. 329; Davis v. King, 87 Pa. 261. The act of April 22, 1856, P.L. 532, applies to all cases of constructive trust: Evans' Ap., 81 Pa. 278; Way v. Hooton, 156 Pa. 8; Christy v. Sill, 95 Pa. 380.

A resulting trust must arise, if at all, at the inception of the title, and the statute begins to run from the time of the creation of the trust -- from the time of the transaction or transactions which created the trust: Waterman v. Brown, 31 Pa. 161; Barnet v. Dougherty, 32 Pa. 371; Dowing v. Garard, 24 Pa. 52; Hanna v. McConkey, 11 Phila. 549; Musselman v. Eshleman, 10 Pa. 394; Fleming v. Culbert, 46 Pa. 498; Campbell v. Boggs, 48 Pa. 524; Christy v. Sill, 95 Pa. 380; Morrell v. Trotter, 39 Leg. Int. 256; Maul v. Rider, 51 Pa. 383; Cross's Ap., 97 Pa. 471; Hollinshead's Ap., 103 Pa. 158; Clark v. Trindle, 52 Pa. 492; Ashurst's Ap., 60 Pa. 290; Best v. Campbell, 52 Pa. 476; Douglass v. Lucas, 63 Pa. 9; McNinch v. Trego, 73 Pa. 52; Evans' Ap., 81 Pa. 278; Miller v. Bealer, 100 Pa. 583; Way v. Hooton, 156 Pa. 8.

An action to enforce a trust may be by bill in equity or ejectment. The following cases were by action in ejectment: Jackman v. Ringland, 4 W. & S. 149; Barnet v. Dougherty, 32 Pa. 371.

The act of 1856 is a complete bar: Mobley v. Oecker, 3 Yeates, 202; Beckford v. Wade, 2 Vesey, 94; Kenyon v. Stewart, 44 Pa. 179; Warfield v. Fox, 53 Pa. 382; Pratt v. Eby, 67 Pa. 396; Hegarty's Ap., 75 Pa. 517; Douglass v. Lucas, 63 Pa. 12; Folmar's Ap., 68 Pa. 482; Hunt v. Wall, 75 Pa. 413; McCort's Ap., 98 Pa. 33; Hollinshead's Ap., 103 Pa. 158; Cochran v. Young, 104 Pa. 333; Dolph v. Hand, 156 Pa. 91; Way v. Hooton, 156 Pa. 8.

L. P. Stone, for appellees. -- Plaintiff took advantage of the confidence reposed in him, and of his superior knowledge, and should be deemed a trustee ex-maleficio, and the case is not within the act of 1856: Seichrist's Ap., 66 Pa. 237; Squire's Ap., 70 Pa. 266; Boynton v. Housler, 73 Pa. 453; Christy v. Sill, 95 Pa. 380; Davis v. King, 87 Pa. 261.

Defendant, being tenant in common with his brothers and sisters, and agent in charge, was prohibited under law from acquiring any right antagonistic to them, as he evidently intended; he could not buy in incumbrances, control them, have the property sold and become the purchaser, neither could he buy in the property at a tax sale, except to hold for the benefit of his brothers and sisters; Chorpenning's Ap., 32 Pa. 316; Sheriff v. Neal, 6 W. 534; Jones v. Coonway, 4 Yeates, 111; Harrisburg Bank v. Foster, 8 Watts, 16; McDowell v. Potter, 8 Pa. 189; Keller v. Auble, 58 Pa. 410; Myer's Ap., 2 Pa. 463; Weaver v. Wible, 25 Pa. 270; Lloyd v. Lynch, 28 Pa. 419; Beegle v. Wentz, 55 Pa. 369; Duff v. Wilson, 12 Pa. 442.

Defendant's intention can only be adjudged by what he did. Did he buy intending to save the property to himself, his brother and sisters? He does not say so, his acts do not indicate it, but the law says, he holds the property, the manual possession for them, as preserver of their rights; the title he never acquired: Hoffman v. Srohecker, 7 Watts, 86; Swisshelm's Ap., 56 Pa. 475; Church v. Rowland, 64 Pa. 443; Duff v. Wilson, 72 Pa. 442; Davis v. King, 87 Pa. 261; Bisp. Eq., 3d ed. 273.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE DEAN:

The parties to this suit filed a case stated in the nature of a special verdict for the opinion of the court. The material facts agreed upon are these: William Tanney, the ancestor of these parties, died intestate in 1857. At his death, he was the owner of a lot on which was a frame dwelling house in the city of Pittsburgh. He left a widow, Amelia Tanney, and four children, William, Emma, Julia and Lewis; the whole family occupied the property until 1869. At this time the children had married, and all had left the city; the property was thereafter occupied by tenants, and the rent, with consent of the children, was paid to their mother, Amelia, who died December 10, 1881. Up to January 1, 1877, this defendant, Lewis H. Tanney, had expended in improvements, payment of taxes and municipal liens, $500, no part of which was repaid him by his brother and sisters, his cotenants.

William Tanney, one of the plaintiffs, at the same time had also paid out $500 for the same purposes, no part of which was repaid by the sisters. The taxes for 1878 and 1879, amounting to $40.73, not having been paid, they were entered as a lien, scire facias issued, judgment had, execution issued, and the property sold at sheriff's sale. One John J. Lawrence became the ostensible purchaser at a bid of $500, and deed was duly acknowledged to him March 12, 1881. Lewis H. Tanney, the defendant, by agreement, furnished Lawrence the $500 purchase money paid to the sheriff, and Lawrence conveyed the property to Lewis, March 24, 1881, who soon after took possession and has since retained it. The $500 was appropriated, to costs and taxes $63.22, to the widow and four children the balance $236.78, the widow's share being $78.00, and $39.46 for each of the children. These plaintiffs each executed receipts dated respectively July 19, August 18 and August 27, 1881, for these shares. They are all alike, and this is a copy, without signature, of each one of them: "Received August 27, 1881, of A.S. & W. S. Moore, the sum of thirty-nine and 46-100 dollars in full of my share of balance due the heirs of William Tanney, deceased, out of the sale of real estate in Allegheny County, Pa., sold upon execution issued upon judgment No. 37, September Term, 1879, in the Court of Common Pleas of Allegheny County, No. 1, D.T.D."

When the money was paid, all the distributees were of full age; William, Emma and Lewis lived at the time in Beaver county, and Julia in Cleveland, Ohio; the money was paid and receipts given at their homes; A. S. & W. S. Moore, who paid the money and took the receipts, were residents of Beaver county. Up until the dates of the receipts, no one of them, except Lewis, had any knowledge of the filing of the liens or the sheriff's sale of the property. As late as the latter part of 1879, at the solicitation of Lewis, all the parties had executed and delivered a power of attorney to Alderman Leslie, authorizing him to dispossess a delinquent tenant, and relet the property; under the power, he obtained possession and rented to a new tenant June 1, 1880, and thereafter accounted to Lewis for the rents. This action of ejectment was not begun until January 3, 1891, more than nine years after the sheriff's sale and the payment of the purchase money.

On this statement of facts, it was agreed that the court should enter such judgment "As in their opinion the law and equities of the case will warrant."

The court entered judgment for plaintiffs for the undivided three fourths of the land, subject to the payment by each plaintiff to defendant of the sum of $39.46, the share received of the purchase money at sheriff's sale, with interest from July 19, 1881. From this judgment defendant prosecutes this appeal, assigning for error the judgment for plaintiffs and the refusal of the court to enter judgment for defendant.

If without collusion, Lawrence had been a purchaser for himself with his own money, and had afterwards conveyed the lot to Lewis Tanney, Lewis would have taken a good title as against even his cotenants; for the title of all the tenants, having, for the debt of all, passed by regular sale to a third party, Lewis owed no duty thereafter to his cotenants with regard to it. But the purchase by Lawrence was only nominal; he merely acted for Lewis, and paid for it with Lewis's money, then reconveyed to him. The change in title was only in form; the interests of the cotenants remained the same; the deed to Lewis, if of any value, inured to the benefit of all, the same as if he had purchased the incumbrance without a sale. Each one of two or more tenants in common of land stands...