Vaughan v. Barclay , 1841 Pa. LEXIS 49 ( 1841 )

The opinion of the court was delivered by

Gibson, C. J.—All

the unconfessed parts of the bill are directly proved but the acceptance of the trust by the respondent’s ancestor. To supplythe evidence of that, recourse is had to the doctrine of implied acceptance, which, however, is applicable only to a conveyance of the beneficial interest, and not to the conveyance of a dry title loaded with a trust. But is not presumptive evidence of acceptances afforded, in this instance, by the circumstances and nature of the case? The deed to the original.trustees was executed in 1795, and Mr. Barclay, being requested, in 1808, to join in a conveyance to new trustees designated in an amendment of the original articles, does what? Denies that he had accepted the trust? No such matter. He refuses to convey without assigning any reason for it that wé perceive; and had he not accepted, the trust before, every principle of duty would have called on him to disclaim it then. That he had left the company thirteen years, under a belief that he was one of its trustees, is evident from its call on him to discharge himself of the imputed trust; and the existence of such a belief, undisturbed by one who could have been no stranger to it, is evidence to charge him. From the very course of such matters, a presumption arises that the deed was presented to him, as it was to Mr. Nixon and Mr. Willing, in order to complete the execution of it by delivery ; and as he expressly accepted it, or expressly rejected it then, the company could have been under no misapprehension of the state of the fact; and if it knew that he had rejected it, why call on him for a conveyance in 1807, or why this bill? There is, then,at least a spark of evidence that Mr. Barclay took on himself the burthen of the trust; and to raise a doubt on the subject, is to make out-the complainant’s case. What harm can befall the respondent, or what responsibility can he incur from conveying without a covenant against any thing but acts done, or incumbrances suffered by himself? By the amendment adverted to, it was agreed “that the said John Nixon and John Barclay, on making such competent conveyances or transfers, forever after be held harmless and blameless for any, and all, neglects or pretended neglects, and for any and all doings, which may have happened or accrued while they were considered the trustees of the company.” Now if the trust descended on the respondent’s shoulders, this conventional aegis necessarily descended on them along with it. But even without protection from that, or from the direction of a court of chancery, to whom could he become answerable for the execution of such a conveyance ? Not to the company who instigated him to do the act; nor yet to the company’s equitable grantee who could not be prejudiced by it. The complainants, therefore, seek to impose on him no heavy or unconscionable burthen. This company, like many others formed about the same time, was a partnership for the purpose of dealing in land; and a suspicion of the soundness of its title would be as ruinous to its business, as would a suspicion of insolvency be to the credit of a mercantile firm. Without the relief sought by the bill, the title to its land would appear to be imperfect on the face of it; and as this blemish can be removed without detriment or inconvenience to any one, we are bound to consider the respondent’s ancestor to have been an original trustee; and that point being established, a decree to convey is of course.

Decreed accordingly.