Enyard v. Weinmann ( 1900 )

William W. Porter, J.,

Opinion by (after stating the facts as set out in the statement of facts) :

An examination of the testimony and a consideration of the effect of it under the provisions of the statute, have not led us to differ from the findings and conclusions of the court below. It is said in the adjudication, inter alia, “The only written evidence that Charles Enyard held the ground rent, in dispute, in trust for his son, EdAvard, is contained in an entry which was made in his book and in a paper called a receipt. . . . These writings were neither of them signed by Charles En-yard, and they did not individualize or identify the ground rent to which they refer. . . . The memorandum in the handwriting of Charles Enyard was made nearly twenty years after he took title to the property and it nowhere appears that this written declaration, whatever it may be worth, was made within five years of the time when the alleged trust in favor of Edward Enyard came into existence.”

It is contended that there was testimony tending to show that the ground rent was treated by Charles Enyard as the property of Edward; that the arrears Avere paid o\rer to the latter from time to time, and that Edward was thus in open possession and enjoyment. The best of this testimony was furnished by Catherine Enyard, the widow of William. Of it the learned judge of the court below says: “ Her evidence related to a date long subsequent to the time when the ground rent vested in Charles Enyard, and on the whole I am of opinion that her evidence cannot be regarded as conclusive in regard to the nature of the title or interest in the ground rent,” etc. There was, therefore, no proper evidence of a trust expressed by writing (see Dyer’s Appeal, 107 Pa. 446); there was none that the money of Edward Enyard went into the purchase of the ground rent when title was taken by his father (see Silliman v. Haas, 151 Pa. 52); and none of a resulting trust accruing within five years preceding this proceeding to prove and enforce it (see Way v. Hooten, 156 Pa. 8, 21). The provisions of sections 4 and 6 of the Act of April 22, 1856, P. L. 532, are directly applicable and prevent a decree in the defendant’s favor.

The judgment is affirmed.