#### O’Neil *v.*Soles.

In an action of ejectment, it appeared that, in 1851, a deed for the land in dispute was made to O’Neil, husband of the defendant. In 1867, O’Neil mortgaged the land. Subsequently the mortgage was foreclosed and the land was sold to one Brown, who then conveyed a portion of it to the defendant. The remainder, by various conveyances, vested in the plaintiff. O’Neil and his wife remained continuously in possession. Atthe trial, the testimony of O’Neil was offered in evidence to prove that the deed of 1851 was made to him by a mistake of the scrivener ; that it should have been made to his wife, who furnished the purchase *money ;*that he executed the mortgage without his wife’s knowledge or consent; that, prior to the purchase of the mortgage by Brown, he called upon Brown and informed him of the defendant’s ownership of the land, and that Brown agreed that, if he would permit the property to be sold at sheriff’s sale, he Brown, would buy it in and execute to the defendant a deed for the whole tract, O’Neil to pay all of his creditors; that Brown subsequently conveyed a portion of it to the defendant, but failed to convey the residue ; that the plaintiff and his grantors knew of defendant’s ownership of the land before they bought it, and knew of the agreement made by O’Neil. The offer was rejected. Held, not to be error.

A subsequent offer to establish a trust ex maleficio, by proof that the defendant knew that his grantor held the title as trustee for Brown, was properly excluded.

It seems, that, under the statute of frauds, a contract, such as that attempted to be set up in the above case, is void.

Oct. 22, 1888.

Error, No. 49, Oct. T., 1888, to C. P. No. 2, Allegheny Co., to review a judgment on a verdict for plaintiff in an action of ejectment by Wesley C. Soles against James O'Neil and Eliza Jane, his wife, in right of said wife, at April T., 1887, No. 496. Clark, J., absent.

Plaintiff filed an abstract of title, and defendant filed a plea of not guilty and a denial of the plaintiff's abstract. The following facts appeared, at the trial, before White, J.:

On June 28, 1851, John Wilkinson and wife conveyed the land in dispute by deed to James O’Neil. On Feb. 13, 1867, O’Neil mortgaged the property to Thomas Penny, administrator. In 1878, a scire facias was issued on the mortgage and the property was sold and conveyed by the sheriff to Samuel S. Brown et al. Subsequently, by mesne conveyances, a portion of the land vested in the plaintiff. O’Neil and his wife remained in continuous possession of the land.

O’Neil having been called as a witness, the defendant proposed “ to prove by him that he purchased the property in controversy in this case on the 28th of June, 1851, from John Wilkinson, for his wife, one of the defendants in this suit, and with money of hers; that he directed the deed to be made to his wife, and, by a mistake of the scrivener, it was made in the name of himself as the grantee ; that he always told his wife, when the matter was talked of, that the property was hers; that she spoke of it as her property all the time; that, though he subsequently placed a mortgage upon the property, being the one referred to in the abstract of title, he did so without his wife’s knowledge, intending, however, to pay the mortgage himself, being at that time in good circumstances; that, prior to the *247sheriff’s sale of the property under said mortgage, his wife was informed of the sale, and he thereupon called upon the holders of the mortgage, the Browns, and informed them of the ownership of his wife in the property; that they then agreed that, if he would permit the same to be sold at sheriff’s sale, they would buy in the same and execute the deed to his wife for all the property covered by the mortgage; that they carried out the agreement only as to part of the property, by making a deed for one portion thereof to his wife, but failed to carry out their agreement as to the residue; that, prior to the purchase of the property by the plaintiff in this suit, the plaintiff was informed of the claim of Mrs. O’Neil, the defendant, to the property, and had full knowledge thereof; that he lived near the residence of the defendant and was frequently in their house, and was there repeatedly told of Mrs. O’Neil’s ownership of this property, prior .to his purchase of the same.

Objected to, 1, as immaterial and irrelevant; 2, as not sufficient to overthrow title in a purchaser under the mortgage and the proceeding thereon in evidence; 3, the witness is not competent to impeach a title arising under his own mortgage; 4, the witness is incompetent generally. Objection sustained and exception, [i]

The defendant further proposed to prove by the same witness, in addition to the above, that, shortly before the purchase of said mortgage by Samuel S. Brown and others, they proposed to the witness that, if he would arrange to settle up with his creditors what he then owed them, they would purchase said mortgage, and convey the property covered by the mortgage, after a sheriff’s sale thereof, to his wife; that the witness thereupon, in accordance with that arrangement, did settle with his creditors, and paid off their indebtedness. This, for the purpose of showing a consideration for their agreement to make such conveyance to the witness’s wife.

Plaintiff’s counsel added to their objection, as follows : 5. The offer does not show any consideration for the alleged agreement. 6. The entire offer is vague and indefinite.

Objections sustained and exception. [2]

Defendant’s counsel proposed to prove further, by the same witness, that Hill Burgwin, the grantor of the plaintiff, simply held the title to the property in controversy as trustee of Samuel S. Brown and others, and that the plaintiff knew at the time, before his purchase of the property, that Mr. Burgwin was simply such trustee. This, in connection with the evidence already offered.

Plaintiff renewed his objection. Objection sustained and exception. [3]

The court gave binding instructions for the plaintiff. Verdict and judgment for plaintiff.

Subsequently the court refused a new trial, in the following opinion, by White, J.:

“ The offers of evidence were insufficient to make title in Mrs. O’Neil for the following reasons:

*248“ 1. The plaintiff claims title under the mortgage executed by James O’Neil (who had the record title from 1851) to Thos. Penny in 1867, and it was not controverted that he was a bona fide mortgagee without notice.

*“2.*The alleged agreement with Samuel Brown et al., who purchased the property at sheriff’s sale on that mortgage in 1879, was without consideration. The agreement or promise to convey to Mrs. O’Neil, if James O’Neil should pay his debts, had no consideration to make it binding in law.

“ 3. The offers were defective in this, that, while they proposed to prove that O’Neil had paid all his debts, they did not propose to prove that the purchase money on the sheriff’s sale had been refunded.

“ 4. At best, it was but a parol trust without any consideration money at the time, to be executed on a future contingency. It was sucha ‘trustor confidence’ as the statute of April 22, 1856, declares void, because it was not in writing. It is not a resulting trust, arising from the use of money belonging to another, or by implication of law, nor could the Browns be considered trustees ex maleficio, for there is no fraud alleged, or any wrongful act which should charge them with a trust. If the failure to fulfill a promise like the one suggested would be a fraud, so as to make the party a trustee ex maleficio, then the statute of 1856 is a nullity.

“ Since the foregoing was written my attention has been called to Kraft *v.*Smith, 9 Cent. 646, which sustains the position that such a promise is void under the Act of April 22, 1856.”

*The assignments of error*specified, 1-3, the rulings on the evidence, quoting the bills of exceptions, as *above;*and, 4, the action of the court in giving binding instructions for the plaintiff.

*Thos. C. Lazear,*with him *C. P. Orr,*for plaintiffs in error.—

Prior to the purchase of the mortgage by Samuel S. Brown and others, Mrs. O’Neil had the equitable title to the property and could.have paid the amount secured by said mortgage, and'then have proceeded in equity, against her husband, to recover the legal title. After she learned that the property was in her husband’s name, and prior to the sale, Samuel S. Brown and others proposed to her, through her husband and agent, and agreed to purchase said mortgage, and after a sheriff’s sale of the property by virtue thereof, to re-convey the premises to her. They at that time knew of her claim and title. The consideration for this offer, which was accepted by Mrs. O’Neil, if consideration were necessary, were the trust (for she could thus more easily acquire the legal title to the premises), and that her husband should arrange to settle with his creditors what he then owed them. This agreement, while made through the husband, was in reality an agreement with the wife. James O’Neil did arrange with and pay all his creditors, and Samuel S. Brown and *249others did purchase said property as agreed, and carried out the agreement as to all of the land, except the premises in dispute. '

There can be no doubt that Mrs. O’Neil, before the purchase of the mortgage and before the sale, had an interest in the land in reference to which the contract was made; it is not alleged that she acquired a new interest by parol.

If one be induced to confide in the promises of another that he will hold in trust or that he will so purchase for one or both, and is thus led to do what otherwise he would have forborne, or to forbear what he contemplated to do, in the acquisition of an estate whereby the promissor becomes the holder of the legal title; an attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio. Morey *v.*Herrick, 18 Pa. 123; Boynton *v.*Housler, 73 Pa. 458; Beegle *v.*Wentz, 55 Pa. 369; Seichrist’s Ap., 66 Pa. 237; Wolford *v.*Herrington, 86 Pa. 39; Cowperthwaite *v.*The First National Bank of Carbondale, 102 Pa. 397.

Had Mrs. O’Neil been an entire stranger or the defendant in the execution, the contract with the Browns would have fallen within the statute of frauds, etc. But, under the authorities above cited, which all preserve the distinction, she had an interest in the property, and, having reposed confidence in the offer and promise of the Browns, they became trustees ex maleficio, when they refused to re-convey all of the property to her. Under the authorities above cited, the court erred in refusing the offers of testimony, when we included therein the facts that the grantor of the defendant in error held the property merely as trustee for Samuel S. Brown and others, and that defendant in error had notice of the claim and title of Mrs. O’Neil before he purchased.

It is not necessary that notice be a formal communication. Whatever puts a party on inquiry amounts, in judgment of law, to notice. Hottenstein *v.*Lerch, 104 Pa. 454.

John O’Neil was a competent witness and his evidence should have been received, particularly so in connection with the fact that Samuel S. Brown and others partially carried out their agreement. His credibility was a question for the jury. Prowatten *v.*Tindall, 80 Pa. 295.

*W. B. Rodgers*and *W. A.*Dunshee, not heard, for defendant in error.

That part of the first offer which referred to Mrs. O’Neil’s claim to the property, because of the alleged mistake of the scrivener who wrote the Wilkinson deed, amounted to nothing. Soles, the plaintiff below, claimed title under Thos. Penney, who was a bona fide mortgagee without notice. Therefore Soles stood in Penney’s shoes, and his title was not affected, even if he had notice of Mrs. O’Neil’s equitable claim. Mott *v.*Clark, 9 Pa. 404; Bryar *v.*Beckett, 30 Pitts. L. J. 12.

The remainder of the first offer was to prove a parol trust.

*250Nov. 5, 1888.

Then the first offer was supplemented by a second, which seems to refer 'to an entirely different occasion, and one at which Mrs. O'Neil’s title was not even mentioned. By this second offer, a consideration was attempted to be shown. But it is difficult to see how Mrs. O’Neil was in any way concerned in this alleged consideration. It does not appear that it would have made any difference to Mrs. O’Neil whether her husband paid his debts or not, nor does it appear that it would make any difference even to the Browns, because they do not seem to have been creditors.

But, in addition, whilst the offer was to show that O’Neil had paid all his debts, there was no offer to prove that any one had paid the mortgage or refunded the purchase money on the sheriff’s sale.

The offers, as a whole, are not clear, explicit and unequivocal, which they should be in a case of this kind.

The case is one of an agreement, without consideration, that the Brown’s should purchase the property and convey it to Mrs. O’Neil, and their failure to do so. No portion of the purchase money was paid by Mrs. O’Neil; no person was prevented from bidding. “ The fraud, if- any, was not at the sale, not in the promise, but in its subsequent breach. This is too late.” Kellum *v.*Smith, 33 Pa. 158; Kimmel *v.*Smith, 117 Pa. 183; Salsbury *v.*Black, 11 Cent. Rep. 771.

It is argued on the other side that, whilst the arrangement would have been a mere parol trust had Mrs. O’Neil been a stranger or the defendant, yet, because she had this claim, her case would be different. It is difficult to see the ground for this distinction under the statute. Agreements of this kind are void, because not reduced to writing, and there is no exception because the party is neither a stranger or defendant. There can be no distinction made, because Mrs. O’Neil “ had an interest in the property; ” so has the defendant in every sheriff’s sale, but that does not aid in making a resulting trust.

Per Curiam,

The proposed defence, in this case, had to recommend it neither law nor equity, and the court below properly refused to entertain it.

Judgment affirmed.