Blyholder v. Gilson ( 1851 )

The opinion of the Court was delivered, by

Bell, J.

The defendant below, representing the heirs of David Gilson, resists the plaintiff’s claim to recover the land in dispute, altogether upon the ground that his declaration to Shoop and Klingensmith in May, 1833, constitutes him a trustee for his cousins. 'As trustee, it is insisted he is not in a position to set up the bar of the statute of limitations, without first showing air express or implied disclaimer of the trust, known to the cestui que trusts, beyond the period of limitation. And this is true, if the facts proved establish a trust. Otherwise the defence necessarily fails, since, in the absence of trust, the plaintiff is not only protected by lapse of time, but, without recurring to that, may safely stand upon the conveyance made to him by the vendees at the tax sale. Upon this master point of the case, it was justly observed by the President of the Common Pleas, that the evidence of Gilson’s declarations is extremely loose and unsatisfactory, as the foundation of a trust of lands. But without insisting on this, a reference to recent and well considered adjudications will make it manifest, that a declaration like that relied on here, though never so well proved, is of itself incompetent to the creation of a trust, unassisted by either the relative position of the parties, by proof of an injurious fraud, practised upon the rights of the original owners, or by a suggestion that, in the transaction with Shoop and Klingensmith, the plaintiff acted as the agent of David Gilson’s heirs; the statement according to one of the witnesses, “that he was redeeming the land, not for himself alone, but he was one of the heirs,” or as we are told by another, “he wanted to redeem the land for the heirs;” is left to stand upon its naked efficacy to found an estate. As the parties were not tenants in common of the land, the defendants can derive no advantage from the principle that the act of a co-tenant enures to the benefit of his fellows. Nor was any such fraud perpetuated, as might operate to convert the plaintiff into a trustee, ex maleficio. Did his interference constitute a statutory redemption of the land, doubtless the defendants might have taken advantage of it, within a reasonable time; as was permitted in Orr v. Cunningham, 4 W. & Ser. 299, and other like cases. Or perhaps the representation that he was acting for them, would have been considered such an injurious interference with their exclusive right to redeem, as to constitute a fraud, operating to fasten upon him the character of trustee, if thereby they were actually prevented from the exercise of that right. But in truth, the transaction of May, 1823, possessed none of the features of a legal redemption. The mode of rescuing an estate from the effect of a tax sale is distinctly prescribed by the fourth section of the Act of 1815, directing payment of the purchase-money and additional per-centage, to be made to the county treasurer, by the owner or some one for him, within a specified time, upon which the original title revests. But here, there was no attempt made under the statute, and consequently no interference with, or effort to compromise any right residing in the heirs of David Gilson. They stood in respect of the land, after the conveyance to the plaintiff, as they had stood before, and for more than a year, there was nothing to prevent their application to the proper officer, for redemption of the tract; a right which was finally taken away by lapse of time, and not because of anything done or suffered by the plaintiff. His dealing with Shoop and Klingensmith, was but a purchase of the incomplete title, held by the vendees of the treasurer, which any stranger was free to make, and which could not in any way interfere witji the privilege residing in the original owners. There is, therefore, no pretence of fraud committed against them. If any such element blurred the transaction, by the practice of a deception, it was perpetrated against those from whom the plaintiff purchased, who alone could take advantage of it. The rights and remedies of the defendants were altogether superior to, and independent of it. They are therefore to be considered and adjudged without reference to it.

We are then reduced to the simple inquiry, whether the declaration of the plaintiff already noticed, raised a trust in favor of David Gilson’s heirs ? I have already intimated that it is inefficacious for such a purpose. Whatever may have been at one time the impression prevailing upon this point, produced perhaps by the peculiar views of the learned judge who pronounced the judgment of the Court in Peebles v. Reading, 8 Ser. & R. 484, it is settled by more recent cases, that a mere declaration by one that he is about to purchase land for another, without any previous arrangement, will not raise a trust for the benefit of the latter. To work such an effect, the purchase must be in pursuance of a prior agreement, founded in a sufficient consideration; or the means of making the purchase, or at least some portion of it, must be furnished by him, who claims to be the cestui que trust. The doctrine in which these kinds of parol trusts are founded, is so fully treated of in Kisler v. Kisler, 2 Watts 323; Robertson v. Robertson, idem 36 ; Sadler v. Walters, 5 Watts 389, Haines v. O’Conner, 10 Watts 313, and kindred determinations, that a simple reference to them is sufficient.

It is true, a previous agreement to purchase in trust, or the fact that the purchase-money proceeded from the party setting up the trust, may be established by the oral declarations of the actual purchaser. This is the extent to which the cases have gone, and it has been justly observed, that to push the doctrine of parol confidence beyond this, would operate a pro tanto repeal of the statute of frauds and perjuries. In the case before us, there is an utter absence of evidence tending to establish the essential features of a trust. It follows from this, too, that the statute of limitations, of itself, conferred title upon the plaintiff, for his possession could not be otherwise than adverse. The charge of the Court below being in accordance with these views, the

Judgment is affirmed.