Grove v. Kase

45 A. 1054, 195 Pa. 325, 1900 Pa. LEXIS 636

Opinion

Per Curiam,

Plaintiff conveyed to defendant by deed absolute, duly acknowledged and recorded, and now files this bill for an account and reconveyance, on the ground that the deed was really upon a trust that defendant would apply the royalties from the land conveyed, to the repayment of plaintiff’s debt to her for money then due and for such as she might thereafter pay as surety.

This transaction viewed, even as plaintiff himself presents it, was clearly a parol defeasance which the Act of June 8, 1881, P. L. 84, made ineffectual to reduce a deed absolute to a mortgage.

But appellant now seeks to prevail by the establishment of a trust ex maleficio arising, from a breach of the confidence, on the faith of which the conveyance was made, and the fraudulent use of the title thus acquired. Trusts of this kind were discussed in our late case of Barry v. Hill, 166 Pa. 344, and the general rule is that the fraud necessary to establish them must be in the transaction from the beginning, though it may be shown by such subsequent conduct as will sustain an inference of fraudulent intent running back to the inception, but not developed until later occasion or opportunity is presented for accomplishment. But the learned judge below found that there was no fraud at all on the part of the defendant, and that the alleged parol agreement to treat the conveyance as security only, was not proved. It was explicitly denied by the defendant in the answer and the force of this denial was not overcome by the requisite, clear, precise and indubitable evidence.

Decree affirmed.