Wylie v. Mansley , 132 Pa. 65 ( 1890 )

Opinion,

Mr. Justice Williams:

The second assignment of error is not in conformity with the rules of this court. It relates to the admission of testimony, but neither the offer, the objection, nor the ruling of the court below is embodied in it, and it must be dismissed for that reason. The first assignment raises the only question presented for consideration.

The action is ejectment. The plaintiffs are the heirs at law of Eunice H. Mansley, who had been the holder of a deed in fee-simple for the property in controversy for about twenty-one years before her death. Edward Mansley, her husband, survived her somewhat less than one year, and died leaving a son by a former marriage, who is the defendant. He resists a recovery upon the legal title, alleging that the property was paid for by Edward Mansley, his father, although the title was taken in the name of Eunice PI., the wife; and that she is therefore a trustee of the title for her husband and his heirs at law, under a trust resulting from the payment of the purchase money by him. He is setting up an equitable title in himself against a clear legal title in the plaintiffs, and the burden of proof is on him. The action is turned into a proceeding in equity, in which the defendant is in the position of one asking to have a resulting trust declared and a conveyance by the holder of the legal title decreed.

The judge, under such circumstances, becomes a chancellor, and the jury simply his advisers. The defendant was therefore under the necessity of presenting a case for equitable relief that was so clear and conscionable as to satisfy a chancellor. If the evidence on which his allegation of the existence of a resulting trust rested, was such as to leave his title to relief in doubt, or, if it was unsatisfactory in character, so that a chancellor would not regard it as sufficient to justify a decree, it ought not to be left to the jury. Whether there was evidence on which a verdict could conscionably rest was a preliminary question, and it was one which it was the duty of the judge to determine. If he was of opinion that the evidence was not sufficient to sustain a verdict in favor of the trust, it was his duty to say so to the jury, and withdraw the evidence from their consideration: Moore v. Small, 19 Pa. 461; Piersol v. Neill, 68 Pa. 420; Hess v. Calender, 120 Pa. 138. The rule is well settled that a recovery by means of the verdict of a jury will not be permitted upon a title which is void at law, unless equity and good conscience entitle such party to the intervention of a chancellor : Tyson v. Passmore, 2 Pa. 122; Greenlee v. Greenlee, 22 Pa. 225; Reno v. Moss. 120 Pa. 49. In the latter case the authorities were examined and the rule re-stated so recently that it would be unnecessary to repeat what was there said.

In the present ease, the learned judge followed the rule so well settled in this state, and refused to submit to a jury a .case upon which he would have refused a decree if the facts had been before him in a proceeding on the equity side of the court. In this he was clearly right, and

The judgment is affirmed.