#### Pfiffner’s Appeal.

A court of equity will not grant relief where a party has been guilty of laches by delay for some twenty years in enforcing his rights.

*Not decided*whether the Act of April 22, 1856, applies to a bill in equity to establish a resulting trust by a husband against the heirs of his wife, where the title was in the wife and the premises were occupied by the husband and wife jointly for a time, and afterwards the property was assessed in the name of the husband, by whom taxes were paid, etc.

October 25, 1888.

Appeal, No. 140, Oct. T. 1888, from a decree of the C. P. No. 2, Allegheny Co., on a bill in equity by John Ulrich Pfiffner against Alexander Pfiffner et ah, heirs of Amanda Pfiffner, deceased, to enforce a resulting trust, at Oct. T. 1885, No. 509.

*161The averments of the bill are stated in the opinion of the court below. The answer of the defendants averred, inter alia, that Mrs. Pfiffner bought the property in dispute with her separate estate, and that the improvements were paid for chiefly with her money.

The case was referred to J. N. Langfitt, Esq., as master, who reported a decree in favor of the complainant. Exceptions to the master’s report were sustained by the court, in the following opinion, by White, J.:

“ The object of the bill in this case is to have a deed, made to plaintiff’s wife in 1864, declared to be in trust for him, and the title conveyed to him. His wife died in 1882. The bill was filed in September, 1885.

“The bill sets forth: 1, that, on or before June 9, 1864, he ‘placed in the hands of his wife $ 1,400.00 with which he authorized her to purchase for him and in his name ’ the property in dispute; 2, that she purchased the property, but, ‘without his knowledge, authority or consent, the deed was made in her name ’ ; 3, that, in ignorance of that fact, on Sept. 9, 1867, he sold a part of the lot to John Ulmer, and made valuable improvements on the remainder; 4, that neither ‘ he, nor any of the family, learned, until after her death, that the deed was put in her name ; ’ 5, that it was matter of doubt ‘ whether his wife was fully aware of the fact that the deed was in her name; ’ 6, that he has always been in possession, paying taxes, etc., as his property.

“ In none of these particulars is the bill entirely sustained by the testimony, while, as to most of these averments, the testimony is directly contradictory. [There is no evidence that the sum of $1,400 was placed in her haftds for the purpose of buying this property. The evidence is clear (produced by the plaintiff himself) that, in 1865, about a year after the date of the deed, and before he sold a part, or made any improvements, he knew the deed was in his wife’s name. It is also proven that the family knew that fact, and spoke of it as ‘ mother’s property.’] [3]

“ The main evidence for the plaintiff is the testimony of Alexander Pfiffner, a son of the parties. He says the deed was in possession of his mother until her death. He says his father furnished the money, but gives no particulars, and admits he did not see the money. His father came in one evening and said to his wife he had seen a house for sale, ‘ hurry and fix up, and go and see if the house will suit us.’ When they .came back, he said: ‘ We bought a house; I think we got a good bargain.’ The next day, as he was going to his work, he said to his wife: ‘ Now, you attend to paying for the property and get the deed.’ In a subsequent part of his testimony, he said his mother was custodian of the money ; that his father, who was a glass-blower, paid over his wages to her; that his father sold a piece of property in 1863 for $475, and another piece in the spring of 1864 for $1,000, but he does not state that these sums were paid over to his mother. In a later part of his testimony, *162he says that his mother kept ‘ the money locked up in her chest, an old German chest, which she brought from Europe, and kept in her bed-room; ’ and, in one place, says his mother told him she had the money in the chest — referring to the $1,000 for the last property his father sold. This is substantially all the testimony there is to show that the father’s money paid for the lot. And there is nothing corroborative, except the testimony of John Meany, who, the third time he was called, says that, in a conversation with Mrs. Pfiffner in 1873, she said, ‘the Rochester property was hers, but this property [referring to the property in dispute] belonged to the old gentlemen.’

“ It appears from the evidence that Mrs. Pfiffner got some money from the estate of her former husband, and received $1,400 from Germany, in gold, which she sold for $2,800 in greenbacks. This is the testimony of Alexander. But he is manifestly mistaken when he says this was in 1870 or later. He says gold was then worth $2.00. The evidence shows that gold was worth $2.00 in June, 1864 (the deed is dated June 9th, 1864), but was not worth anything like that premium after 1865.

[“ Seventeen years before his wife’s death, the plaintiff knew the deed was in her name.] [3] Three years after her death, this bill was filed. Under these circumstances, it should require very clear and satisfactory evidence that the plaintiff’s money paid for the lot, to make her a trustee for him. To some, it is not satisfactory. [From the evidence, there is as good reason for believing it was her money that paid for it as his.] [4]

[“ Alexander testifies that he went with his father to see the attorney who prepared this bill, and gave him a ‘ history of the case.’ In this bill, the plaintiff says he never knew until after his wife’s death that the deed was in her name. Yet, Alexander, in his testimony, details minutely a family difficulty on this very point in 1865. He says his mother sent his father over in 1865 to pay the state and county taxes. His father said to her, ‘ Pland out your money, give me the money, and I’ll go and pay it.’ His father came back ‘ very furious and mad.’ Pie said to her, ‘ Who owns the property, you or me ? ’ So mother told him, ‘ It belongs to you, of course.’ He said: ‘ What right have you to have it in your name; it is a confounded shame to make people believe that it is yours. I want you to understand you wont have me under your slipper.’ She says: ‘ Well, you need not fly up about a thing of that kind, for I did not mean any harm by it>; I did not do it with any bad intention.’ He says they quarreled all day, and, in the evening, ‘ mother said, now go and put a “ For Sale ” on the house, and sell it and build on the corner, and put it in your name, if you don’t trust me.’ After that, he says ‘ they were as good as pie.’ And from that time on nothing more was ever said on this subject. This testimony is very explicit that both Alexander and his father then knew that the deed was in the name of his mother.] [5] After this, and until her death, according to the testimony of some of *163the children, the property was spoken of in the family as ‘ mother’s property,’ and, some of them say, in the presence of their father. [Taking all that Alexander says, what does it amount to ? His father was ‘very furious and mad’ about it. But why? Nothing is said as to whose money paid for the lot. It is all consistent with the idea that her money paid for it, but the father was angry because the title was in her name.] [5]

“ The plaintiff does not allege in his bill any fraud on the part of his wife, nor does the testimony show any fraud or intentional wrong by her. [In the bill, it is said it is doubtful whether she knew the deed was in her name. If there was no fraud, but a mistake, and if his money paid for the lot, there would be a resulting trust. But, under § 6 of the Act of April 22, 1856, the trust should have been reduced to writing within 'five years from the time he discovered the fact. That was in 1865, seventeen years before his wife’s death, and twenty -years before this bill was filed.] [6]

[“ But it is contended that, as he was in possession of this property, renting, paying taxes, etc., the statute does not apply.] [7] That principle is stated in Clark *v.*Trindle, 52 Pa. 492; Williard *v.*Williard, 56 Pa. 119; Douglass *v.*Lucas, 63 Pa. *g;*and McNiench *v.*Trego, 73 Pa. 52. But the principle only applies when the cestui que trust is in exclusive possession. In Douglass *v.*Lucas it was said that the erection of a lumber shanty on the tract of land, cutting and carrying away timber, from time to time, for several years, to within two years of the suit, was not such possession or occupancy as would save this case from the operation of this statute. [In this case, there was no exclusive or adverse possession by the husband. The deed was in June, 1864; shortly after that, the family, husband, wife and children, moved into the frame house on the property,] [7] and continued to live in it until x 867, when that portion was sold to Ulmer, and the family moved into a new brick house built on another part of the lot. They resided in it for a year, when a frame addition was built, of two rooms, into which they moved and lived, renting the brick house, until 1874, when they moved to Beaver county. [While they lived on the property, the rent was sometimes paid to Mrs. Pfiffner and sometimes to her husband. After they moved to Beaver county, an agent attended to it. It was assessed in the name of the husband, he paid the taxes, etc. When they moved on the property, and all the time they lived there, the title was in the wife’s name. In contemplation of law, it was her property and her possession. The fact that it was assessed in the husband’s name, he paid the taxes, made improvements, and had the property insured in his name, do not constitute an adverse possession against his wife. It is perfectly consistent with her title.]. [7] He did no more than many husbands do with their wife’s property. It has no similarity to the case referred to.

[“ The fact that Mrs. Pfiffner does not refer to this property in her will, or said to Meany in 1873 that it belonged to her husband, will *164not save the plaintiff from the bar of the statute. If there was a resulting trust, he knew it in 1865. If he slept for seventeen years without having it reduced to writing, he can only blame himself for the consequence. The statute was intended to cut up by the roots all parol trusts, and to give only a delay of five years on all trusts arising by implication of law or resulting from money paid as .claimed in this case. If not reduced to writing within the five years, the trust is dead. It cannot be kept alive, or revived by paroi promises or admissions.] [8]

“ The exceptions to the master’s report are sustained, and the bill is dismissed at the costs of the plaintiff”

*The assignments of error,*specified, the action of the court, 1, in overruling, and, 2, in not confirming, the master’s report; 3-8, the findings of the court as stated in the portions of the opinion included within brackets, quoting them; and, the action of the court, 9, in sustaining defendant’s exceptions and, 10, in not affirming plaintiff’s exceptions to the master’s report.

*John J. Mitchel,*with him *H. W. Weir,*for appellants.

One who takes a deed in his own name for land paid for by another, is a trustee by force and operation of law, not because he agrees to hold for the other party but because he cannot hold for his own use without violating conscience, good faith and honesty. The trust results and the obligation to execute it is implied, not by his will, but by the nature of the transaction. Linch *v.*Cox, 23 Pa. 269.

Parol evidence of the fact of land being purchased with the money of another creates the trust by operation of law. Linch *v.*Cox, supra; German *v.*Gabbald, 3 Bin. 302.

The evidence shows that the plaintiff had the means with which to buy the property, deposited with his wife, that he asked her to buy it, occupied it, made improvements, had it insured, paid the taxes and received the rents. The evidence also shows that the wife did not get her money until after the property was purchased.

The fact that Mrs. Pfiffner specifically devised all her realty, by her will, leaving out this property, excludes any conclusion that she considered she had any claim to it.

The Act of April 22, 1856, does not apply, as the husband, the cestui que trust, was in possession.

*Samuel Harper,*with him *R. B. Petty,*for appellees.

The answer denies the material averments of the bill, and, under equity rules, the testimony of two witnesses is required to overcome it, and their testimony should be clear and certain. Campbell *v.*Patterson, 95 Pa- 447; Story’s Eq., § 1523.

The material averments of the bill are not supported by the testimony of two witnesses or their equivalent. The testimony on the part of the plaintiff is vague and contradictory in itself, and is in contradiction of material averments in the bill.

Where conveyance is taken in the wife’s name and paid for by *165the husband’s money, the presumption of a resulting trust is rebutted and the contrary presumption arises, that the purchase was intended as an advancement. Perry, Trusts, § 143; 2 Washburn, Real. P., p. 440; Earnest’s Ap., 106 Pa., 310.

Nov. 5, 1888.

The Act of 1856, provides, that no right of entry shall accrue or action be maintained ... to enforce any implied or resulting trust, as to realty, but within five years after such trust accrued.

The trust, if any, accrued in 1864, and the facts were then, or certainly in 1865, known to the plaintiff. There was nothing to prevent his then filing a bill against his wife. See Cord, Married Women, 979.

The title being in the wife, the possession was hers and not that of her husband, and the case falls within the bar of the statute.

Aside from the bar of the Act of 1856, the suit is barred by laches. 2 Washburn, Real. P., 3d ed., p. 457; Perry, Trusts, § 141.

The legal title of a married woman may be affected by a constructive or resulting trust, but it must be made out in some other mode than by her admission or acknowledgment, orally or written. Graham *v.*Long, 65 Pa. 383.

Per Curiam,

We are inclined to agree with the learned judge of the court below, in his finding of facts, rather than with the master. That Mrs. Pfiffner had the money with which to pay for the property in dispute, when it was bought in 1864, is not doubtful, nor is it probable that he did not know that the deed was made in her name. At all events, he did know that fact in 1865. According to the testimony of the son, Alexander, the husband and wife at that time had a quarrel over the matter, he having discovered that the deed was in her name, and she then told him to sell the house, build a new one, and put it in his own name. Thereupon the dissatisfaction disappeared, and from thenceforth nothing more was said upon the subject. He did not proceed to sell, as she authorized him to do; nor did he in any other wise assert his alleged right to the deed until he preferred this bill, some three years after his wife’s death, and about twenty after he was informed that the title was in her. After so long an acquiescence in her right, we must assume that he intended to allow the title to remain in her. Such being the case, and his claim being so very stale, the equity side of the court cannot help him.

As to what the court below has said concerning the resulting trust, and the effect of the Act of 1856, whilst we are not prepared to say that the opinion of. the learned judge is not correct, neither are we willing to adopt it without a more critical examination than we are now prepared to give if.

Decree affirmed at costs of appellant.