Opinion by
Mr. Justice Williams,
■ The questions raised by the several assignments of error will be readily comprehended after a glance at the facts out of which they grow. The plaintiff is a purchaser at sheriff’s sale of a farm sold as the property of Daniel Lutz. This proceeding was instituted by the purchaser for the purpose of obtaining possession. The defendant in the judgment concedes that such title as he had has passed by the sheriff’s sale to the purchaser, but alleges that as to about twenty twenty-ninths of the title he held for the use of Ms wife, Henrietta Lutz, under a trust resulting from the payment of $2,000 of the purchase money by her upon a parol agreement that she should be an owner in proportion to the purchase money paid by her. To establish this trust it was mcumbent on Mrs. Lutz to show by evidence that was clear and satisfactory, first, that she did pay a portion of the purchase money for the farm in controversy, as alleged; second, that it was paid upon an agreement that she was to have the title to the land, or such portion of it as she paid for; and third, that the money so paid belonged to her as her separate estate. Upon the trial of the cause Mrs. Lutz gave evidence tending to prove the payment of $2,000 of the purchase money, and that it was paid upon the agreement alleged. To show that the money was her own, and received from her father’s estate, she proved by the testimony of several witnesses that not long after her marriage her father proposed to advance to her the sum of $400 in land if she and her husband would move upon the land and improve it. To this they both agreed., Her father had however the opinion that because the note of a married woman was not valid as an obligation [11] against her, so neither could she lawfully take a title to land. He proposed therefore to give a deed for the land to her husband, take his note for $400, the price of the land, and charge the note to her share in his estate by his will. This was done. Lutz and his wife went upon the land, lived upon it for more than twenty years, improved it, and at length sold it with an adjoining piece of land which her husband had purchased, and divided the money received according to their respective interests, she receiving $1,400 as her share. This together with the moneys received from her father’s estate made up the sum she alleged was paid by her. If believed the testimony of the witnesses by whom these facts were shown was sufficient to justify the jury in finding in favor of Mrs. Lutz. The plaintiff alleged that this testimony was unworthy of credit because it was in apparent contradiction of the written documents, the deed, and note given at the time. The question for the jury was whether these papers were so explained and accounted for by the testimony as to overcome the presumption arising, prima facie, upon them, and establish the title of Mrs. Lutz in the thirteen acres conveyed by her father to her husband, but admittedly paid for out of her share in her father’s estate. The first assignment of error complains that the learned judge erred in affirming the plaintiff’s first point. In this point he was asked to say that if Caleb Pyle the father of Mrs. Lutz had passed the title to the thirteen acres to Daniel Lutz in 1865, he could not several years later advance the same land to his daughter so as to impress it with a trust in her favor. As an abstract proposition this might be unobjectionable, but as applicable to the facts of this case the point was misleading. No such question was presented on the evidence. There was no attempt to show any such effort on the part of Caleb Pyle as the point assumed.
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Opinion by
Mr. Justice Williams,
■ The questions raised by the several assignments of error will be readily comprehended after a glance at the facts out of which they grow. The plaintiff is a purchaser at sheriff’s sale of a farm sold as the property of Daniel Lutz. This proceeding was instituted by the purchaser for the purpose of obtaining possession. The defendant in the judgment concedes that such title as he had has passed by the sheriff’s sale to the purchaser, but alleges that as to about twenty twenty-ninths of the title he held for the use of Ms wife, Henrietta Lutz, under a trust resulting from the payment of $2,000 of the purchase money by her upon a parol agreement that she should be an owner in proportion to the purchase money paid by her. To establish this trust it was mcumbent on Mrs. Lutz to show by evidence that was clear and satisfactory, first, that she did pay a portion of the purchase money for the farm in controversy, as alleged; second, that it was paid upon an agreement that she was to have the title to the land, or such portion of it as she paid for; and third, that the money so paid belonged to her as her separate estate. Upon the trial of the cause Mrs. Lutz gave evidence tending to prove the payment of $2,000 of the purchase money, and that it was paid upon the agreement alleged. To show that the money was her own, and received from her father’s estate, she proved by the testimony of several witnesses that not long after her marriage her father proposed to advance to her the sum of $400 in land if she and her husband would move upon the land and improve it. To this they both agreed., Her father had however the opinion that because the note of a married woman was not valid as an obligation [11] against her, so neither could she lawfully take a title to land. He proposed therefore to give a deed for the land to her husband, take his note for $400, the price of the land, and charge the note to her share in his estate by his will. This was done. Lutz and his wife went upon the land, lived upon it for more than twenty years, improved it, and at length sold it with an adjoining piece of land which her husband had purchased, and divided the money received according to their respective interests, she receiving $1,400 as her share. This together with the moneys received from her father’s estate made up the sum she alleged was paid by her. If believed the testimony of the witnesses by whom these facts were shown was sufficient to justify the jury in finding in favor of Mrs. Lutz. The plaintiff alleged that this testimony was unworthy of credit because it was in apparent contradiction of the written documents, the deed, and note given at the time. The question for the jury was whether these papers were so explained and accounted for by the testimony as to overcome the presumption arising, prima facie, upon them, and establish the title of Mrs. Lutz in the thirteen acres conveyed by her father to her husband, but admittedly paid for out of her share in her father’s estate. The first assignment of error complains that the learned judge erred in affirming the plaintiff’s first point. In this point he was asked to say that if Caleb Pyle the father of Mrs. Lutz had passed the title to the thirteen acres to Daniel Lutz in 1865, he could not several years later advance the same land to his daughter so as to impress it with a trust in her favor. As an abstract proposition this might be unobjectionable, but as applicable to the facts of this case the point was misleading. No such question was presented on the evidence. There was no attempt to show any such effort on the part of Caleb Pyle as the point assumed.
'The allegation of the defendant was that the conveyance to Lutz and the taking of his note as a memorandum was the method by which Pyle sought to secure the land to his daughter, and charge its value to her to be paid out of her distributive share of his estate. If this was believed it would not matter when the deed was made or the note taken. It was a gift to Mrs. Lutz. The answer of the learned judge to the plaintiff’s third point is also clear error. It affirms that a resulting trust can be raised only by payment of purchase money at the time [12] the deed is made. If paid before, or after, the act of delivering the deed by the vendor it is ineffectual. Nixon’s Appeal, 63 Pa. 279, cited as authority for this doctrine, does not support it. What was then held was that the mere advance of money to a purchaser after the purchase is complete will not raise a resulting trust. There was no pretense that the person who advanced money in that case to the purchaser was to take, or to hold, an interest in the title to the land purchased. It was advanced to the purchaser under a promise that if he would buy the property she “ would help him pay for it.” “ Agreeing to help a person buy a farm is something entirely different,” said Justice Shabswood in that case, “ from agreeing to join him in the purchase.” The rule- as we understand it is that the trust must be impressed on the title when it passes to the alleged trustee. It cannot be engrafted upon it afterwards. It must result from facts then existing which in equity turn the taker of a title into a trustee. In other words the agreement to advance the purchase money or a portion of it and take title to the land or to so much of it as the money advanced shall pay for, must precede or be contemporaneous with the purchase: and money subsequently paid in .pursuance of such an agreement, under which the title was obtained, should be considered in determining the interest of him who advanced it: Gilchrist v. Brown et al., 165 Pa. 275. By way of illustration let us suppose that A and B agree with each other to purchase a given piece of real estate. The price asked is $10,000 payable one half in hand and one half at the end of one year. A undertakes to pay the first or advance payment, and B the other, and they agree that the title shall be made to both in common. Subsequently A makes the advance payment and directs the deed to be made to himself. - Without knowledge of this fraud B, at the end of the year pays the remaining $5,000. Does it admit of doubt that he could call upon A for a conveyance of the equal one half part of the land to himself? His money was not paid until after the title passed to A but it was paid under an .agreement which antedated the conveyance to A, and which made it the duty of A when the title came to him to convey an undivided half to B. The facts which made it a fraud in A to take the whole title without the knowledge of B, existed when the conveyance was made to A and the trust resulted from them, and fastened upon [13] the title the instant it rested in him. In this case the defendant alleged that she furnished the $100 paid upon the preliminary contract and the $1,000 paid at the delivery of the deed, upon the express agreement with her husband that she was to have an interest in the title corresponding to the amount of purchase money she should furnish, and that she subsequently furnished $900 more in pursuance of this agreement. If this was believed, the money was paid in time. There was not a scintilla of testimony tending to show that the money paid prior to, and at the delivery of the deed, was paid by Lutz, except as alleged by the defendant. The fifth assignment must also be sustained. The point to which it relates was argumentative, and seems to have been drawn for the purpose of securing from the court an indorsement of the line of argument the plaintiff was about to present to the jury upon the facts and the credibility of the witnesses, and it contained an assumption of the truth of the plaintiff’s contention upon questions that were properly for the jury. The sixth and seventh assignments are sustained. The affirmance of these points should have been qualified and the jury told that the presumption arising from the form of the deed from Pyle to Lutz for the thirteen acres and the note for $400 signed by Lutz, was a presumption prima facie only, and capable of being rebutted, and if the testimony given by the defendant’s witnesses explaining these instruments and the reason given by old Mr. Pyle for putting them in the form in which they were found is believed, then the presumption is rebutted and thereafter to be left out of the account. The twelfth assignment of error points out a clear mistake in regard to the measure of proof required. According to the official copy of the stenographer’s notes of the trial certified to by him, and by the learned judge who tried the case, it appears that the jury was told that under the circumstances enumerated by the learned judge in his charge as those surrounding this case, a party could not complain if held to such a uniform measure of proof as would “ secure double protection against the effects of frauds and perjuries to men who have purchased upon the faith of legal titles.” A slip of paper signed by the stenographer was handed up at the argument, expressing an opinion that this instruction had been incorrectly transcribed by him. We cannot regard such a paper as of any value. The [14] charge has been examined, and its correctness, as it appears in the official copy of the stenographer sent up with the record, certified to by the judge who delivered it. The record is that to which we look, to which we must look and we know of no reason that would justify us in disregarding it in this case. The slip of paper handed up to us is no part of the record which it attempts feebly to qualify. Such a method of amending the record cannot be encouraged. It may be that the jury reached a correct conclusion upon the questions of fact in this case. Upon that subject we express no opinion. What we undertake to say is that the answers and charge of learned judge were of a character that might have misled them, and induced a verdict that would not have been rendered if the questions of fact on which the case depended had been distinctly and adequately presented to them as they should have been.
The judgment is reversed and a venire facias de novo awarded.