#### Cleaver *v.*Garner.

In an action of ejectment, it appeared from the evidence that one Spinney agreed to make a purchase of the property at sheriff’s sale in trust for himself and plaintiffs, who were to pay their share of the purchase money, and he did so Sept. 27,1875. On Oct. 8, 1875, Spinney agreed to sell the whole of the premises to one Torrey, on the same day, the Cleavers agreed to convey the whole of the premises to the defendants. On Nov. 27, 1875, the Cleavers filed a bill in equity for specific performance against Spinney and Torrey, and it was decreed, May 5, 1879, by the supreme court, that Spinney purchased the property in trust for plaintiffs to hold as tenants in common, that the legal title vested in Spinney, the Cleavers to pay two-thirds of the sum bid at sheriff’s sale, and the bill was dismissed as to Torrey. On Feb. 13, 1878, before the bill in equity was appealed to the supreme court, Spinney tendered a deed to the Cleavers for two-thirds of the premises, demanding two-thirds of the purchase money, and notifying them that, on non-acceptance of the deed and nonpayment of the purchase money, he would consider himself relieved of the trust. On May 21, 1879, another similar deed and tender was made. On the trial of this suit, a deed from Spinney to Torrey, dated March 8, 1878, was given in evidence ; also proceedings on a judgment against Torrey, begun June 3, 1879, resulting in a United States marshall’s sale, showing the property was sold to the defendants, and a marshall’s deed dated Sept. 5, 1879, to the same. Plaintiffs claimed that there was no termination of the trust by failure to pay purchase money, that the purchase money was due to the party who paid it, and not to Torrey. The court gave binding instruction for the defendants. *Held,*not to be error.

Feb. 19, 1889.

Error, No. 132, July T., 1887, to C. P. Schuylkill Co., to review a judgment on a verdict in favor of the defendants, in an action of ejectment by James R. Cleaver and William Cleaver, against Joseph W. Garner and Michael Garner, at May T., 1881, No. 335.

The writ contained a description of the premises. The plea was not guilty.

At the trial, Albion P. Spinney was called by defendant and sworn. Defendant’s counsel proposed to prove by the witness on the stand that neither Jas. R. Cleaver nor William Cleaver furnished any part of the purchase money for the property at the sheriff’s sale; that, after the decision of the supreme court [1 Walker, 438,] Mr. Spinney tendered them a deed and demanded that they should pay their proportion of the purchase money at the sheriff’s sale; that they refused to do so; that Mr. Spinney then notified them that he would consider the trust as terminated and subsequently the petition to that effect that the trust should be declared at an end was filed in the court and is still pending at this time.

Objected to by plaintiffs’ counsel, 1st, that it is irrelevant and immaterial; 2nd, that, whether Cleavers paid any portion of the purchase money is a matter of no concern to these defendants, but is a matter wholly between the plaintiffs and the parties who did pay it; that Mr. Spinney had no right or authority to demand the payment of the purchase money from these plaintiffs, and therefore his tendering a deed and demanding the purchase money is irrelevant and immaterial, as the supreme court has already declared that the plaintiffs in this suit were owners of two-thirds of the title; that ownership is established by judicial decree and did not require any *385conveyance from Mr. Spinney to invest the title to two-thirds interest -in them; that, so far as the proof now goes in this case on the part of the defendants, Mr. Torrey only purchased from Mr. Spinney the one-third interest as declared by the decree of the court of Pennsylvania, and the marshal’s deed only conveys to the defendants that one-third interest; that all these things happening after the decree of the supreme court of Pennsylvania can have no effect nor bearing upon any part of the case except so far as it may effect the one-third interest which Mr. Spinney held and conveyed to Mr. Torrey; that it appearing from the record already in evidence that Garners had purchased, under a contract from the plaintiffs, the property in question, the evidence offered is irrelevant and immaterial. [1]

The Court: *“*It is a part of that decree, is it not, of the supreme court, deciding that two-thirds belonged to Cleavers, based upon the condition that they pay that much of the purchase money? Mr. Farquhar: Yes, sir. The Court: I think we will admit this for the purpose of ascertaining whether they did or not. Admitted for the present.”

The witness then testified, in substance, that, on Sept. 27, 1875, he purchased the land in question at a sheriff’s sale in trust for himself and the Cleavers. On Oct. 8, 1875, he agreed to sell the whole of the premises to one Torrey; on the same day the Cleavers agreed to convey the whole of the premises to the Garners. Torrey furnished the purchase money to pay for the purchase at the sheriff’s sale. On Nov. 27, 1875, the Cleavers filed a bill in equity for specific performance against witness and Torrey, and it was decreed by the supreme court that witness purchased the property in trust for the Cleavers to hold as tenants in common, that the legal title vested in witness, the Cleavers to pay two-thirds of the sum bid at sheriff’s sale, and the bill was dismissed as to Torrey. On Feb. 13, 1878, before the bill in equity was appealed to the supreme court, witness tendered a deed to Cleavers for two-thirds of the premises, demanding two-thirds of the purchase monej?, and notifying them that, on non-acceptance of the deed and non-payment of the purchase money, he would consider himself relieved of the trust. On May 21,, 1879, another similar deed and tender was made.

A deed from Spinney to Torrey, dated March 8, 1878, was given in evidence; also, proceedings on a judgment against Torrey, begun June 3, 1879, resulting in a United States marshal’s sale, showing the property was sold to the defendants, and a marshal’s deed, dated Sept. 5, 1879, to the same.

The further facts appear by the charge of the court, by Pershing, P. J.:

“The plaintiffs have offered in evidence several judgments entered against Garner and Christian, and executions issued upon those judgments, to September T., 1875, resulting in a sheriff’s sale of the property in controversy. It was bought in by A. P. Spinney, who *386signed the terms and conditions of sale as attorney, for $12,050. The sheriff’s deed offered in evidence is dated Oct. 18, 1875, but it appears that it was not acknowledged till Jan. 5, 1878. Litigation had sprung up in the meantime between the parties to this controversy. A bill in equity had been filed by the Garners, the present defendant, against the Cleavers, the plaintiffs in this action, and the controversy was carried to the supreme court, as you have heard.

“ It would appear that there was an agreement entered into by Mr. Spinney and James R. Cleaver and William Cleaver by which Spinney was to purchase the property, and they were to hold it as tenants in common, each paying an equal share of the purchase money. The decree of the supreme court has been read in your hearing, as given in the bill in equity which has been filed by the Garners against the Cleavers, for the purpose of compelling the transfer of this property to the Garners, who were then in possession. That decree, the material part of it for consideration here, is that the defendant Albion P. Spinney purchased the property described in the bill at sheriff’s sale in trust for himself, James R. Cleaver and William Cleaver, to hold as tenants in common, and that the legal title vested in him (that is, Spinney) by the sheriff’s deed, was in trust for the use of James R. Cleaver and William Cleaver, their heirs and assigns, for the undivided two-thirds interest of the property, they to pay two-thirds of the sum bid at the sheriff’s sale. There could no title vest in either of these parties to the sheriff’s sale till the money was paid and the deed *delivered;*neither party had a right to possession till the deed was delivered; neither party could sell the property and make a good title till they had obtained this deed from the sheriff.

“ The plaintiffs here offer no title of any kind; no deed or written instrument is presented by the plaintiffs as going to show title in them. It is not claimed that they ever paid a cent of this purchase money. They do not now propose to pay any portion of it. It is in evidence that, after some considerable time, Mr. Spinney tendered to them a deed for two-thirds of the property, and they refused to receive it, refused to take it from him; and he then gave them written notice that, unless they accepted the deed for the two-thirds to which they claimed they were entitled under this sale, he would consider the trust relation between him and them at an end. As a matter of fact, they never did pay any portion of the purchase money. They are here without a shadow of written title claiming to recover this property from the Garners.

“ There is no rule better established than that, in ejectment, a plaintiff must recover upon the strength of his own title. It makes no difference what the defendant’s title is, if the plaintiff has no title, he cannot recover. The defendant’s possession will be enough for him to stand upon until there is a better title offered in evidence under which he may be turned out of the possession. It would seem that, on Oct. 8, 1875, Mr. Spinney was in Philadelphia, and *387there entered into, a contract with William Torrey by which he sold the whole of this property to Torrey, stipulating he should get a good title for it. On the very same day, the Cleavers entered into a contract by which they sold the whole of the property to the Garners. It would also seem that Spinney supposed that the Cleavers would join with him in making the title to Torrey, and the Cleavers supposed that Spinney would join with them in making the title to the Garners, each acting in ignorance of what the other was doing, one acting in Philádelphia and the other in Ashland.' It is proper to observe here that, at that time, no sheriff’s deed had been executed. Not a cent of the money had been paid to the sheriff; neither party had any right to possession, neither of them had any title to sell; the title was still in Christian and Garner till it should be divested by the payment of the bid at the sheriff’s sale and the execution of a deed.

“ It would appear from the further evidence upon the part of the defendant, that, in consequence of this transfer which Spinney, undertook to make of the whole of this property to Torrey, Torrey paid to him the $12,050, the amount bid at the sheriff’s sale by Spinney, and that money Spinney paid the sheriff; so that, so far as any money was paid upon the sheriff’s sale made in this county, it was paid by Torrey through Spinney. After this conveyance had been made by Spinney to Torrey, or at the time, I believe, there was a judgment existing in the Circuit Court of the United States against Torrey and others, obtained in 1876, and, upon that judgment, a writ was issued from the Circuit Court of the United States, placed in the hands of the United States marshal, who put this property at judicial sale, at which time it was purchased by the Garners for $8,100, the sale confirmed by the Circuit Court of the United States, and a deed made to the defendants in this action for the property on that bid. And the defendants stand upon the title thus acquired as against the claim set up by the plaintiffs as to their right to the possession of this property. It would thus appear from the evidence in this case, without going over it at any great detail, that the only money that has been paid was that first paid by Torrey to Spinney, and through Spinney to the sheriff, and, subsequently, that paid by the Garners for the title of Torrey purchased at the sale made by the United States marshal.

[“ Now, under this state of facts, the plaintiff having shown no title here whatever, it is impossible for me to see how they can have a right to recover. No question has been raised, or at least discussed, as to the effect of the Act of 1866 upon this transaction, therefore I will not do more than refer to it, wherein it is said, ‘ All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void.’ We have a large number of decisions under this Act of Assembly, showing *388that all parol trusts by which land is undertaken to be held are simply void — void even as against the trustee. It seems to me this has a direct bearing upon the case. We therefore say to you, without dwelling further upon the case, that your verdict should be for the defendant. We'affirm the defendant’s last point and the plaintiff’s points are negatived.”]

The court negatived the following points presented by plaintiff :

“ x. By the decree of the supreme court of Pennsylvania in the case of J. & M. Garner, the present defendants, against the plaintiffs and others, in equity, to enforce specific performance of the contract of Oct. 8, 1875, between the plaintiffs and defendants, Albion P. Spinney held the legal title in trust for himself, James R. Cleaver and William Cleaver to hold as tenants in common, and that the legal title vested in the said Spinney by the sheriff’s deed was in trust fo.r the use of James R. Cleaver and William Cleaver, their heirs and assigns for the two undivided thirds of said property.”

“ 2. This trust, as declared and decreed by the supreme court, was a naked dry trust, not dependent upon the payment of two-thirds of the purchase money bid at the sheriff’s sale, but was the result of the contract between Spinney and James R. and William Cleaver, and, at most, the two-thirds of the purchase money bid at the sheriff’s sale was but a debt due from James R. Cleaver and William Cleaver by simple contract. That after the lapse of six years from the payment of the bid of the sheriff’s sale, Spinney’s right to recover the purchase money was barred under the evidence in this case, and the trust was stricken down and the use executed in the said James R. Cleaver and William Cleaver; thereby making the plaintiffs the complete owners of the two-thirds interest in the premises in controversy, as well at law, as in equity.”

“ 3. The defendants entered into the possession of the premises in dispute under the agreement of Oct. 8, 1875, after notice from the plaintiffs that they could not perfect the title, and the defendants having notice of the defect of title in the plaintiffs, have elected to hold the possession of said premises, for nearly twelve years, they cannot now set up such defect of title to prevent the recovery of the purchase money agreed to be paid and due under said agreement.” “4. The evidence is undisputed that the plaintiffs notified the defendants after the agreement of Oct. 8, 1875, was executed, and before the defendants entered into possession of said premises under said agreement, and soon thereafter the defendants had full and specific notice of the extent and character of the title in the equity proceedings in evidence. It was the duty of the defendants, if they did not wish to pay the purchase money under the contract, to rescind the contract and restore the possession to the plaintiffs at the earliest moment possible.”

“ 5. The defendants, having obtained the possession of the premises in suit under their contract of purchase with the plaintiffs, *389bearing date Oct. 8, 1875, and having continued in possession thereof under said contract for nearly twelve years, and having filed their bill to enforce specific performance of said contract, the defendants will not now be permitted to set up an independent and outstanding title in a third person or an adverse title in themselves to protect their possession against the plaintiffs in this action and to defeat the plaintiff’s recovery.”

“ 6. If the position of the defendants is true, to wit: that the-deed of the conveyance from Albion P. Spinney and wife to William Torrey, dated March 8, 1878, for the premises in dispute, conveyed the legal title to the whole of the premises to said Torrey with the right to two-thirds of the whole of the purchase money paid to the sheriff, to wit: two-thirds of $12,050, and if the marshal’s sale of the said premises as the property of Torrey, to the defendants, conveyed all Torrey’s right, including the right to the two-thirds of the $12,050, it then follows that as the defendants purchased the third interest held by Spinney, which was conveyed to Torrey, and by the marshal’s sale to defendants, including the right to two-thirds of the $12,050 purchase money, for $8,100, this sum of $8,100 is all the defendants can deduct from the contract price.”

The defendant presented, inter alia, this point, which was affirmed:

“ 5. Under all the evidence, the plaintiffs have failed to show any right as against the defendants to the possession of the property, and the verdict of the jury must be for the defendants.”

Verdict and judgment for defendants.

*The assignments of error*specified, 1, the ruling on the evidence, quoting the offer and objection but not the bill of exception or the evidence; 2, the portion.of the charge included within brackets, quoting it; and, 3-9, the answers to plaintiff’s, and defendant’s points, quoting the points and answers.

. *James*Ryon, with him *Samuel H. Kaercher, William A. Marr,*and *John W. Ryon,*for plaintiffs in error.

The purchaser of an equitable title takes subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchased. Chew *v.*Barnet, 11 S. & R. 389; Reed *v.*Dickey, 2 Watts, 459; Kramer *v.*Arthurs, 7 Pa. 165.

The defendants never rescinded the contract, but held possession to the present time without paying any part of the purchase money to the plaintiffs. Their conduct was an election to accept the title such as Cleavers could give. They could not refuse to pay the purchase money and set up a title in themselves or outstanding in anybody else to defeat plaintiff’s recovery. Smith *v.*Webster, 2 Watts,-478; Congregation *v.*Miles, 4 Watts, 146; Jackson *v.*McGinness, 14 Pa. 331; Hersey *v.*Turbett, 27 Pa. 418; Stephens *v.*Black, 77 Pa. 142; Erwin *v.*Myers, 46 Pa. 96; Gans *v.*Ren sha w, 2 Pa. 35.

*390March 4, 1889.

A vendee in possession under a doubtful title, must pay the price agreed upon to his vendor, but is entitled to an allowance for the amount paid for the outstanding title. Renshaw *v.*Gans, 7 Pa. 117; McGinnis *v.*Noble, 7 W. & S. 454; Harper *v.*Jeffries, 5 Whart. 40; Owens *v.*Salter, 38 Pa. 211.

The plaintiffs hold the contract of the defendants as security for the payment of the unpaid purchase money, which is a lien on the land. Such a lien may be enforced by ejectment. Bear *v.*Whisler, 7 Watts, 148; Kensinger *v.*Smith, 94 Pa. 384; Wash. Real Property, 467; Westenbérger *v.*Reist, 13 Pa. 598; Galbraith *v.*Fenton, 3 S. & R. 361; Smith *v.*Shuler, 12 S. & R. 243 Ripple *v.*Ripple, 1 Rawle, 386; Simpson *v.*Ammons, 1 Binney, 175 ; Strauss's Ap., 49 Pa. 355 ; Dewait’s Ap., 20 Pa. 236; New York, &c., Co. *v.*Plumer, 96 Pa. 99; Sutter’s *v.*Ling, 25 Pa. 466; Vierheller’s Ap., 24 Pa. 108; Cadwallader *v.*Berkheiser, 32 Pa. 43.

An equitable right to the possession of land is sufficient to enable a plaintiff to recover in ejectment, and a cestui que trust entitled to the possession may maintain an ejectment either against a trustee or a stranger. Presbyterian Congregation *v.*Johnston, 1 W. & S. 9; Campbell *v.*Galbreath, 5 Watts, 425; Ins. Co. *v.*Smith, 11 Pa. 120.

*Guy E.*Farquhar, with him *A. P.*Spinney, for defendants in error.

The plaintiffs, under the decree of the supreme court, could have no title without payment of the two-thirds of the purchase money bid at the sheriff’s sale. Such payment was a condition precedent to the existence of title in them. The evidence shows that they never paid any part of it, but, on the contrary, refused to do so, thereby declining to receive any title and rendering the trust inoperative and dead, in which condition it has remained ever since.

Per Curiam,

When a branch of this case was here before, in Garner’s Appeal, [ 1 Walker, 438,] it was held and decreed by this court: “ That defendant* Albion B. Spinney, purchased the property described in the bill at the sheriff’s sale, in trust for himself, James R. Cleaver and William Cleaver, to hold as tenants in common, and that the legal title, vested in him by the sheriff’s deed, is in trust for the use of James R. Cleaver and William Cleaver, their heirs and assigns, for the undivided two thirds of said property, they to pay two thirds of the sum bid at sheriff’s sale.” This is as explicit as language can make it, and had the plaintiffs paid their share of the purchase money they would have acquired title to the two-thirds in question. They did not pay it, however, and are now seeking to recover the premises in question without payment of the purchase money, and without even the shadow of the title. I cannot state this proposition more clearly than was done by the learned judge below in his charge to the jury. He said: “The plaintiffs here offer no title of any kind; no deed or written instrument is presented by the plaintiffs as going to show title in them. It is not *391claimed that they ever paid a cent of the purchase money. They do not now propose to pay any portion of it. It is in evidence that, after considerable time, Mr. Spinney tendered to them a deed for two-thirds of the property, and they refused to receive it, refused to take it from him; and he then gave them written notice that unless they accepted the deed for the two-thirds to which they claim they were entitled under this sale, he would consider the trust relation between him and them at an end.”

The plaintiffs have no title to this land, and their claim is not worth discussing.

Judgment affirmed.