Seichrist's Appeal , 66 Pa. 237 ( 1870 )

The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— The facts of this case we think are clearly proved. Zirkenbach had a contract with Eiihu Marvin for the purchase of 3 acres of land, on which he had made a small payment in work, and was in actual possession under his contract, having built a house and made some minor improvements. Being unable to pay the purchase-money, he agreed with Seichrist to sell him the northern part by a line to be run in continuation of the line of an adjoining lot owned by Seichrist to the old French road, provided Seichrist would pay off the balance of the purchase-money to Marvin. Marvin being applied to, declined to make two deeds, but suggested that Seichrist, on paying the balance of purchase-money to him, could take the deed for the 3 acres, and after-wards convey to Zirkenbach his part when he should pay for it. This was accordingly done, and in a few days a fence was put up by Seichrist on the line between him and Zirkenbach; Seichrist at the time, stating it to be the division fence between them. Afterwards Seichrist procured the line to be traced by two surveyors for the purpose of making an accurate survey of this parcel, in order to convey his part to Zirkenbach. For, while Seichrist did not deny his obligation to convey to Zirkenbach, but finally, on the latter tendering him his money, or as much as Zirkenbach thought was coming and demanding a deed, Seichrist denied the bargain and refused to convey. In the mean time Zirkenbach had remained in possession, and had built a small stable or barn.

The court below held, that a trust arose out of these facts, and decreed in favor of Zirkenbach. The argument in this court is founded upon the 4th section of the Statute of Frauds of the 22d April 1856, which requires all declarations or creations of trusts of any lands, tenements or hereditaments to be manifested by writing, signed by the party holding the title thereof. If nothing more existed in the case than a mere bargain between the parties that Seichrist should take a title for the land from Marvin, and afterwards convey to Zirkenbach on payment of the proportionate share of the purchase-money, the argument would be irresistible. Undoubtedly the Act of 1856 cuts up by the root all parol trusts by bargain or contract. It is intended to prevent frauds in relation to the title of real estate by requiring the evidence of it to be witnessed by a writing. But we are of opinion this case falls within the proviso to the 4th section of the Act of 1856, that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall arise by implication or construction of law, such trust or confidence shall be of like force and effect as if the act had not been passed. Among the trusts thus resulting from the operation of law are those arising from the fraud of the party who has the title. Although no one can be compelled to part with his own title by force of a mere verbal bargain, yet when he procures a title from another which he could not have obtained except by a confidence reposed in him, the case is different. There, if he abuse the confidence so reposed, he is converted into a trustee ex maleficio. The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud. It is not therefore the fact that the bargain by which he was enabled to obtain the title is verbal which governs the case, but the fact that he procured the title to be made to him in confidence, the breach of which is fraudulent and in bad faith. Clearly such is the case before us. Zirkenbach was the equitable owner, and controlled the title to the whole three acres. Marvin could not sell it to Seichrist, nor could he reclaim the property without a legal proceeding to dispossess Zirkenbach and rescind the contract. When Seichrist, therefore, took the title from Marvin, he did so only by the consent of Zirkenbach who gave it in confidence, relying on the faith of Seichrist that he would hold a certain part of the land in trust for him. Thus Seichrist took in confidence that which he could not retain without bad faith and fraud. Clearly had Zirkenbach known, or had Seichrist indicated, that he would hold the title to himself, the former never would have, permitted or given the latter an opportunity of obtaining it. If Seichrist intended to retain the land, and did not say so to Zirkenbach, it was as clearly a fraud, and he is converted into a trustee ex maleficio.

Without a further discussion of the case the conclusion we have come to is fully supported by the case of Beagle v. Wentz, 5 P. F. Smith, and the authorities therein cited on the 374th page; to which may be added Hoge v. Hoge, 1 Watts 163, and the more recent case of Lingenfelter v. Richey, 8 P. F. Smith 485.

The case being one of trust ex maleficio, answers the argument as to the uncertainty alleged in relation to the price of the 1 acre and 39 perches retained by Zirkenbach. Had the case depended on a parol sale, and the' element in it of price had been left uncertain, the argument would have had great force. But where the defendant has obtained a title in confidence and retains it by fraud, the argument has not the same weight. We think, however, that on the evidence there is not much difficulty in arriving at the true sum to be paid by Zirkenbach. It was evidently at the rate of $216 per acre, which is borne out by the testimony of Charles Seichrist, who testifies that his father and Zirkenbach, in August 1867, made the sum then due on Zirkenbach’s part (1 acre and 39 perches) $315. This would be at the rate of $216 per acre and interest added from May 5th 1864. To this we think the court below ought to have added the $30 agreed to be paid by Zirkenbach to Seichrist for his trouble, and the expense of the surveyors; and thus far the decree should be modified. The decree of the Court of Common Pleas is therefore affirmed, adding to the sum decreed to be paid by the plaintiff the further sum of $30, with interest from the time of the decree, and the appellant is ordered to pay all costs including those of this appeal.