Fellows v. Loomis

Per Curiam,

When this case was here on anappeal'from the judgment entered at the second trial, 170 Pa. 415, the facts were reviewed in .detail by the late Justice Williams, from which it clearly appéared that Loomis, one of the present appellants, was a trustee of the land in controversy. The judgment wasreversed and a venire facias de novo awarded, that a verdict might be rendered-recognizing and executing the trust in • accordance with the' principles enunciated in the opinion of the court. On the new' trial so awarded, the learned judge below understood just what was intended by our former opinion, and properly refused to allow the defendants to prove that the evidence on which the decree for the account was founded, was, in fact, false and fraudulent. The time to have proved that was on the second trial; it was not an open question on the last. In reversing the judgment our decree was, with the evidence before us, that a trust existed and that the trustee would have to execute it.

John II. Fellows, the other appellant, complains that he was not allowed to show that ho ought not to be required to account because he had bought a portion of the land as an innocent purchaser and without notice of any equity in favor of Joseph Fellows ; but he had become a party to this suit on his own petition and participated in the former trial. He then had his day in court. Our decree, which was a final one, included both defendants. Subsequently, on their joint petition for re-argument, we refused to disturb the decree, and no error was committed in confining John H. Fellows to his duty to account.

As Loomis paid but $2,800 for the mortgage, which he purchased as trustee, he could not speculate on it at the expense of his cestui que trust. He was entitled to credit simply for what he had paid for it, with interest, and not for $3,500, the face of the mortgage, with interest.

Appeal dismissed at appellants’ costs.