Bickel's Appeal , 1878 Pa. LEXIS 42 ( 1878 )

Mr. Justice Gordon

delivered the opinion of the court,

A resulting trust in land can be raised only from fraud in obtaining title thereto, or from the payment of purchase-money when that title is acquired: Barnet v. Dougherty, 8 Casey 371. Offer-man has failed to bring his case within the reach of either of these rules. That R. W, Packer used any trick, concealment or underhand means in procuring the contract from the Camden and Am-boy Railroad Company, is, so far as we can discover, not even alleged, and that Offerman paid the purchase-money, or any part thereof, which procured or helped to procure that contract, is not proved. It is urged that the alleged trust had its origin in the agreement between Offerman and Packer, dated June 17th 1845. That, however, was not a definite contract to purchase, but only an agreement to endeavor so to do, and this seems to have been based upon the further condition that they could find some one or more persons who would help them to make the first payment of purchase-money. There is, however, no evidence that any such person or persons were ever found, or that there was any further attempt to carry this contract into execution; neither was there the payment of a dollar of money upon it, nor even a covenant therein for the payment of money. Had it been intended to apply the proceeds of the award against the Camden and Amboy Railroad Company and Delaware and Raritan Canal Company, or any part thereof, to this contemplated purchase, such intent would surely have appeared, for that award is mentioned in the agreement, but only to state that Offerman had assigned one-fourth part thereof to Packer, “ for considerations Packer signed to said Offerman some time hence.” The presumption, then, of any such application being thus rebutted, it does not matter that some nine years after this time and after Packer’s death, when the legal title came to be conveyed to the devisee, this award was applied as a credit on the purchase-money still due the company, for not only was this long after the acquisition of the equitable title by Packer, but it was not so applied with Offerman’s assent, or as his property, but as the property of the estate. Moreover, this claim on part of the plaintiff is obviously an after-thought. Packer bought and entered into the actual and exclusive possession of the land in 1846, and was recognised by Offerman, in the most unequivocal manner, as the owner thereof. He made no' claim to any interest therein during Packer’s life, nor until some one or two years after the legal estate had passed by deed to Mrs. Rathbun. Clearly no trust of any kind can be raised on such a state of facts, and we need pursue this branch of the case no farther.

The question next to he considered arises on the Statute of Lim Rations, as affecting the plaintiff’s claim against the estate for the amount of the proceeds of the award above stated. This award, amounting to the sum of $13,085.20, was rendered February 11th 1841; it was assigned to Packer February 18th 1842, he at the same time agreeing to collect the same, and after deducting his own debt, pay over the balance to Offerman. As we have seen, this award was settled with the Camden and Amboy Railroad Company by Packer’s executor in 1856 ; Ave may therefore set it down as a fact, as the auditor has done, that from this last-recited date the statute commenced to run, and unless tolled by suit, or some other act of the parties, it would operate as a bar some time in 1862. On the 17th of March 1857, Offerman brought suit on this claim against Packer’s executor, in which a discontinuance was entered July 8th 1868. On the 10th day of December 1857, a second suit was brought in the District Court of Philadelphia county, against the same party and for the same claim, on which a nonsuit Avas suffered April 12th 1860. Last of all, this bill was preferred some time in 1869. In all this there is nothing to release the grasp of the statute; this, however, is accomplished by the learned auditor, in the manner folloAving. Certain suits had been brought, in the Common Pleas of Berks county, to August Term 1865, by Offer-man, against Rathbun and wife. By an agreement, dated January •30th 1867, it was agreed that Offerman should surrender, for cancellation, the paper of June 17th 1845, and release all claims and demands whatsoever against the defendants and the estate of R. W. Packer, saving and excepting only that arising from the contract respecting the award against the railroad and canal companies, and it was further stipulated that the amount due the plaintiff on this claim should be settled and adjusted by an arbiter in the agreement named and appointed. It was also provided in the instrument just mentioned, that the Berks county suits should be marked settled, and the case pending in the District Court, of March Term 1857, against Asa Packer, as executor of R. W. Packer’s estate, should be discontinued. On the 3d of the following April, Offer-man, having become dissatisfied with the agreement of the 30th of January 1867, gave formal notice of his repudiation thereof, and of his revocation of the submission. Now, the master having found that the agreement above mentioned was void, because not properly executed by Mrs. Rathbun, a feme covert, came to the conclusion, that, as the suit of March 1857 was, as he says, undoubtedly discontinued by Mr. Seitzinger, the plaintiff’s attorney, under and in pursuance of the agreement, the revocation restored the parties to their original status, rendered the discontinuance inoperative, and reinstated the suit of March 1857, and by this means Offerman’s claim was kept alive and the statute tolled. Admitting the facts to be as assumed, we nevertheless cannot admit .the legal conclusion drawn from them. As we have seen, the suit ‘Ü>f March 1857 was against Asa Packer as surviving executor; the present action is brought against this same person, E. P. Wilbur, administrator of Rollin N. Rathbun and Helena Rathbun, and the decree reported by the master is against Packer and Helena Rathbun. But by what process of reasoning is the action of March 1857 made to toll the statute as to Mrs. Rathbun ? It is urged, however, that, though as to her the statute may be operative, it may nevertheless be tolled as to the executor, by virtue of that suit; in other words, as to him, this bill may be made to stand on the foot of the action of 1857. Let us examine this proposition. We observe, in the first place, that without some extrinsic support this bill must fall, for, according to Hamilton v. Hamilton’s Ex’rs, 6 Harris 20, the Statute of Limitations is applied with the same effect in a court of equity as in a court of law. Such being the case, though a bill may have a much wider scope, as to parties and the subjects embraced -by it, than a suit at law, yet it has no greater force as to the statute. A court of equity having obtained jurisdiction over the parties, may settle every subject in dispute between them, touching the controversy, near or remote, direct or collateral, but cannot directly or indirectly reach beyond the statute. But an account is brought into this bill, which, counting from the date thereof, is barred by the statute. How can this apparently insuperable difficulty be overcome ? The answer is, by the action of 1857; as that suit was begun within the six years, it is said, it prevents the running of the statute. No doubt this is correct so far as the claim is involved in and pursued through that suit, but it cannot impart its vigor to any other suit. This is expressly ruled in Magaw v. Clark, 6 Watts 328. In this case the original suit was against Clark & Shryock, in the year 1825, and service of summons was had on Shryock only. In 1830 an alias was issued and served on both, and the narr. and other pleadings were filed as of the suit on this second writ. On demurrer, held, that the Statute of Limitations was a bar- as to both - defendants, notwithstanding the former suit. The decision is put upon the ground that the alias writ having been issued against both Shryock & Clark, and having been served on both, it was in fact a new suit, and not the continuance of the former one, hence was not effective to keep the former alive. It will be observed that thus it was that the alias failed even as to Shryock, who had been served with the original. So also it was said in the case of Wann v. Pattengale, 2 Harris 213, that whatever difficulty might intervene in carrying forward the original suit, the institution of a new and distinct action could not be so connected with the old as, by the use of both, to count back within the period of limitation. This, however, is exactly what is attempted in the present case, under the name of equity; the effort is to engraft this bill upon the action of 1857, so as to give it a power which otherwise it would not have. It mat^, ters not that the suit was in full life when the bill was filed, for, iilf Magaw v. Clark, the alias was of course issued pending the former action; but this bill is certainly quite as much a new suit as was the second summons in that case. Nor can we see where the peculiar equity powers are, which enable a bill to overstride a clear rule of law and attach itself to an action with which it is in nowise connected, except through the claim involved in it. Surely, equity cannot thus overreach the statute, when, as to the statute, a bill is governed by the same rules as a suit at law. Yet it is gravely argued we may begin to count back, in order to reach the statutory period, not from the date of the bill, but from the date of a suit, commenced some nine years before. Conceding that if the claim were of such a character that the statute would not operate upon it, it might be settled in this suit, yet if it were so settled it would be wholly independent of the action in the District Court. It would be the claim itself and not the suit that equity would consider ; so far as that suit was concerned, it would be treated as though it did not exist. For what other purpose, then, is that case now brought into this action than to tide this bill over the bar, of the statute ? Taking up the claim and counting from the date of the bill, and it is found the statute has run; the plaintiff’s case is at an end; but the master, in his desire to do what he considei’s justice, goes back some nine years arid discovers a suit at law involving this claim, and he concludes that, as equity has large powers and powers that may be extended to the last degree, he will graft his bill upon that suit and thus forestall the statute. This cannot be; it is equity run mad.

In this we concede, as of course, what no one doubts, that had the plaintiffs, by the machination or fraud of Packer’s representatives, been induced to defer their claim beyond the statutory period, equity would interfere to prevent the intervention of the statute, but as there is neither proof nor allegation of any such fraud, there is no room for equitable interference on that ground.

So, in like manner, whilst we are not prepared to endorse the finding of the learned master that the non pros, of 1868 was entered, by the attorney of Bickel and Offerman, in fraud of their rights, yet, conceding the accuracy of that finding, it was, nevertheless, a fraud in which the defendants were no way involved ; it was a fraud committed by the plaintiffs’ own agent, and one which, by no possibility, can be set up against the defendants.

Treating the non pros., however, as of no effect, and this is all the plaintiffs can ask, it but follows that a recovery may be had upon any claim set forth in the action of 1857, not older than six years, counting from the teste of the writ. That this count can be made backward from 1857, is due to the fact that that action had its origin in that year, but as it cannot communicate this date to any subsequent suit, either' at law or in equity so neither can it communicate a power which it possesses only by virtue of that date.

Decree affirmed. Costs to be paid by appellants.

Chief Justice Agnew filed a dissenting opinion.