Appeal of Yeager & Grim

Mr. Justice Paxson

delivered the opinion of the court, March 20th 1882.

The statute of frauds and perjuries is directly in the way of the appellee unless he can show a trust. It is not pretended there is a technical trust. If a trust at all it is a resulting trust or a trust ex maleficio. There is no resulting trust in favor of appellee by reason of his payment of the purchase money or any part thereof. It is a conceded fact in the cause that he made no such payment. It was alleged, however, that the title was obtained by the appellants under an agreement to hold the property for the joint benefit of the appellee and themselves, and that having subsequently sold it at an advance they refused to permit the appellee to participate in the profits, and that this refusal was such a fraud as made the appellants trustees ex maleficio.

We are unable to see the fraud. The purchase for the joint benefit' of the three parties is not denied; on the contrary it is frankly admitted by Mr. Yeager, one of the appellants, in his testimony. He further stated that he called upon the appellee and asked him to pay his portion of the purchase money in pursuance of the agreement referred to. The appellee declined to make such payment. The master finds this fact, and it is not disputed. The appellee gave as a reason for his refusal that he hoped to make his money by an exchange of property with Mohr in which event he would have nothing to do with the purchase. This without-more would end the matter. The appellants were under no obligation to advance appellee’s share of the purchase money and carry the property for his benefit. There was no such agreement. But the appellee contends, and the master finds, that when the appellee declined to pay his share of the purchase money he came to an understanding with the appellants that his share thereof should be afterwards settled between them in case appellee’s proposed exchange of property with Mohr did not take place. This portion of the master’s finding rests upon the testimony of the appellee alone. In this lie is flatly contradicted by Yeager, one of the appellants. Yeager is strongly corroborated by Thomas Mohr, an indifferent witness. He says: “Weidner told me that Yeager called on him for his share of purchase money very shortly after the sale . . . . Weidner did say that he told Yeager that he contemplated a trade in real estate and if that was carried out he would have nothing to do with this purchase with Yeager & Grim.” It will be observed there is not a word here about an extension of the time. The probabilities are all against Weidner’s story. As soon as he declined to pay his share of the purchase money Yeager called upon Grim and induced him to take a half interest-. The title was then made to them. This is inconsistent with the idea of the extension of time claimed by the appellee. It is very evident the latter was attempting to play fast and loose. The property was bought subject to heavy incumbrances. There was no certainty of a re-sale at a profit. The appellee, perhaps, preferred to claim his share of the venture should it be successful, and leave the appellants to bear the loss if the property could not be re-sold to advantage. Equity does not favor this mode of dealing.

• It does not need that we should reverse the master’s finding of facts to set aside this decree. Upon his own showing there was no fraud, and hence no trust. The appellee was the first to repudiate the agreement, by declining to pay his share of the purchase money. The subsequent agreement which he would set up does not help him. It did not bind him and therefore did not bind the appellants.

The decree is reversed and the bill dismissed at the costs of the appellee.