Farrell ex rel. Hughes v. Lloyd

69 Pa. 239, 1872 Pa. LEXIS 84

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 1872
• Status: Published

Opinion

The opinion of the court was delivered, May 27th 1872, by

Sharswood, J.

When the question of Thomas Farrell’s title was before this court in Lloyd v. Lynch, 4 Casey 419, there was no evidence whatever that the land had been purchased by Barnabas Farrell with his money, but the case rested simply upon a parol declaration by Barnabas that he was buying for Thomas at the time of the purchase. Mr. Chief Justice Lewis said: “ The mere declaration of a vendee that he intends to buy for another, without evidence of a previous agreement to do so, or of any advance of money for the purpose, raises no trust which can be supported.” On this record, however, there is evidence which if believed is sufficient to supply that deficiency. There is the testimony of Jonathan Zerbe, who was the book-keeper at the Canoe Furnace, from which it may fairly be inferred that Thomas was able to save money out of his earnings, and had, at the very time of the purchase, money just then due and paid him, but that it was highly improbable that Barnabas had anything. But more directly in point is the testimony of William Yon. He said that in 1841 he went to the house where the Farrells lived to haul some wood for them. He found Barnabas before the door in his good clothes as about to go away on some business. He (the old man) “ said he was going to the mountain to buy a piece of land. He said that Thomas had got a little money, and said he wanted to put it into land. He said he was going to buy a tract adjoining Burgoon’s lands on the mountain. I told him I knew near about where Burgoon’s lands were; that I had hauled coal from there. While we were talking, Thomas came out of the house and handed over some money to his father.” Now here is evidence of a previous agreement by Barnabas to buy the land for Thomas, and of an actual advance of money by Thomas to do so — it matters not what the amount was, great or small. Coupled with the declaration by Barnabas to Collins at the time of the purchase that he was buying for Thomas, we think it should have been submitted to the jury to say whether the purchase had not actually been made at the time with money advanced by Thomas for that purpose, which would have created a valid resulting trust in his favor within the exception of the Statute of • Frauds.

We are also of the opinion that the evidence of William M. Lloyd upon this trial, in regard to the agreement by Gilbert L. Lloyd on his purchase from Thomas Farrell to take all the risk of the title, was materially different from what it was on the former trial, when the ease was under review in this court in Lloyd v. Farrell, 12 Wright 73. The witness then said nothing of what took place when the deed was delivered or after the article of agreement was made. His testimony as to what took place at the time of the agreement was indefinite. “ We are n-ot even informed,” said Mr. Justice Strong, “ whose understanding it was of which the witness spoke. Was it his own or that of the parties? Was it the witness’s construction of the written agreement or of the conversation of Farrell and Lloyd ? If, as is probable, the witness referred to the understanding of the parties, how did he gather it — from their negotiation or their written contract?” It is not disputed that in all these respects the testimony is now clear and definite. “ On the day it (the article) was executed,” says the witness, “ Gilbert Lloyd came out from Hollidaysburg with the article prepared. He brought it into our office prepared. Farrell was present before the execution of the article and refused to sign it, alleging that it was not a conveyance of the tract, not in accordance with the agreement. Gilbert L. Lloyd said that the understanding of the parties was that Lloyd was to take the land — the Farrell title — at his own risk. They talked the matter over and both agreed to this. It was executed with that distinct understanding.” “ This was the understanding of the parties at the time they signed the deed. The same understanding was had in regard to the title at the signing of the deed as at the signing of the article of agreement : that is at the execution of the deed. I was there then and witnessed the deed. This understanding was the understanding of the parties, Gilbert Lloyd and Thomas Farrell. Farrell refused to sign on any other conditions.” It is certainly true that if Thomas Farrell knew that there was a secret trust in favor of his sisters and fraudulently concealed that fact, he could not avail -himself of this agreement, either at law or in equity. It would be void so far as their title was concerned. But that clearly was a question for the jury, and would depend very much upon the fact whether the land was bought with his, Thomas’s, money. If he knew that to be so, he was not bound to disclose the fact that he had given a bond of indemnity against his sister’s title to his vendors, Collins & Ross. If Farrell knew he had paid for the land though the original agreement was in his father’s name, good faith did not require him to state to his vendee facts connected with it which he deemed of no importance. If, however, the fact was not so, and of course he must have known it — “ that with such knowledge concealed in his own bosom,” as Mr. Justice Strong well remarked in Lloyd v. Farrell, “ he could have bound his ignorant vendee by an agreement to assume all the risk of a title, would be grossly inequitable. It is idle to say that any court of equity would enforce such a contract.” It is evident, then, that whether there was a fraudulent concealment by Farrell of his sister’s claim or title, was a question of fact which ought to have been submitted to the jury.

We see no error in the rejection of the deposition of Robert Lemon. Declarations by Gilbert Lloyd as to how much he had made by the speculation, were entirely irrelevant, and could only have tended to mislead the jury.

Judgment reversed, and venire facias de novo awarded.