Beegle v. Wentz ( 1867 )

The opinion of the court was delivered, November 21st 1867, by

Agnew, J.

— We must throw out of the case the waiver of the exemption laws contained in the note on which the judgment was entered. After the execution had issued, Wentz demanded the $300 provision, and the sheriff summoned appraisers, who were on the ground, ready to proceed. If Beegle considered the waiver contained in the note sufficient for his purpose he had nothing to do but to object to the appraisement, indemnify the sheriff, and proceed with the execution; or if the sheriff held the appraisement to apply to the court to set it aside. This he did not; — but entered into a new arrangement with Wentz by which he procured from him and his wife a waiver of the exemption, endorsed upon the writ, for a valuable consideration. This consideration is proved to be the agreement of Beegle not to take from Wentz and wife their house; but to leave it, with 15 acres, as a home to them; and that, if they would waive the exemption, he would buy in the whole tract at sheriff’s sale, and make them a deed for the 15 acres. According to the proof the whole tract, containing 58 acres, was not worth more than $300.

The distinguishing feature of the case is, that the agreement of Wentz was not to acquire a new interest in the land by parol; but he was the owner of the land; had a title both legal and equitable ; and a right to retain so much of the land as would be of the value of $300. It was this subsisting title which Beegle procured Wentz to forego, by his promise to leave him his house and 15 acres, and make over to him the sheriff’s deed for that part. This part he was not to take but to hold in trust. His language was, he did not want to take their home from them; that he would give them a home of 15 acres, provided Wentz would sign some agreement to let him sell the whole tract; and he would buy the land and give them a sheriff’s deed for the 15 acres.

It presents, therefore, the case of a resulting trust, and falls within the principle of Sheriff v. Neal, 6 Watts 534; McCullough v. Cowher, 5 W. & S. 427 ; Miller v. Pearce, 6 Id. 97 ; Morey v. Herrick, 6 Harris 123; and Plumer & Crarey v. Reed, 3 Wright 46. In the last case the opinion was delivered by the present Chief Justice, and the facts run upon all fours with the present case. There the defendant was in possession, and made a small improvement upon 116 acres of land under a purchase by articles on which he paid only $5. In order to enable the plaintiffs to purchase a large tract of land of his vendor, including the part he had bought, he agreed to cancel his contract on the promise of the plaintiffs to give him a deed for the 10 acres on which his improvement lay; and it was held in this &ourt that a trust arose out of their promise as an inducement to him to part with the title he had to enable them to make the purchase of the whole. The trust in such cases arises ex maleficio, on the principle that equity will not permit one to deprive another of a title he actually has, by such a promise not intended to be performed. In fact, two equitable principles enter into the transaction; — first, the ownership of the land which is the equivalent of paying for it, for certainly an actual estate in the land is as good as the money paid for it; second, the absolute fraud which characterizes the non-fulfilment of the very inducement which led the owner to part with his estate. Thus, in this case, there was both title and possession to the whole tract, and a right to retain so much as would fill the exemption. This right Wentz was induced to surrender on the false assurance, which the jury has found, that his house and 15 acres should be left to him ; and secured by the sheriff’s deed. Clearly to this extent there is a resulting trust ex maleficio in Beegle for Wentz -; and it is not within the act of 1856, which excepts trusts or confidences arising by implication. or construction of law. Nor does it make any difference that the title was acquired by Beegle through a judicial sale. When the ti;ust arises in a fraud it vitiates all deeds private or judicial: Hoffman v. Strohecker, 7 Watts 86; M’Kennan v. Pry, 6 Watts 137 ; Gilbert v. Hoffman, 2 Watts 67 ; Small v. Jones, 1 W. & S. 138 ; Jackson v. Summerville, 1 Harris 369 ; Martin v. Gernandt, 7 Harris 128-9. Under the instruction of the court the jury has found the intention of Beegle to entrap Wentz into the waiver, not intending to comply with his promise.

But it is said the 15 acres were not laid off, and therefore, from the uncertainty, no trust arose. This is not a case of absolute uncertainty ; the house being a fixed object, and the 15 acres were to surround it. The meaning of the parties was clear — to preserve to the defendant 15 acres of ground around the house as a home. In such a case the law presumes that it is meant to be laid ofl’ in a reasonable shape, and the parties can afterwards do it; or, if one will not, the other can, on notice to him of doing it. Such is the principle decided in Cox v. Blanden, 1 Watts 536 ; Krider v. Lafferty, 1 Whart. 317 ; Brotherton v. Livingston, 3 W. & S. 337 — in which it was held that a want of designation can be supplied by the election of the grantee. See also Thomas’s Coke 452. A survey was made by Wentz, which was in proof, the reasonableness of which was to be judged of by the jury.

Upon the whole, we find no error, and

The judgment of the court below is affirmed.