Opinion by
Mr. Justice Green,
Although there are eighty assignments of error in this case, none of them are pressed upon our attention in the argument of the learned counsel for the appellant except the very few which relate to the jurisdiction of the court, and the two matters arising under the fifty-ninth and sixty-eighth assignments. We do not think it commendable practice to assign error to all the rulings of the court below simply because they are adverse to the party appealing, when, in point of fact, the great bulk of them are upon undisputed conditions of the testimony and upon legal propositions which cannot possibly be controverted.
In the present case we are most clearly of opinion that the plaintiffs’ claim rests both upon the sealed agreement made by [333]*333Junius R. Clark with his father on October 11,1873, and upon the mutual agreement, also under seal, made by all the heirs of Joseph F. Clark, on July 2, 1877, and also upon the paper of July 9, 1877. AH of these papers fully express the relation of trust and confidence established between the defendant, J. R. Clark, and the other members of the family, and in our opinion there can be no manner of doubt that in all the matters in controversy Junius R. Clark was a technical trustee, as to the properties and all the transactions growing out of them, for his mother and his brothers and sisters as cestuis que trust. So far as the agreement of July 2, 1877, is concerned, the precise question has already been decided by this Court in the case of Clark v. Clark, 180 Pa. 186. That was a bill filed against this same defendant by a'nother sister claiming, practically, the same relief as to accounting as is sought in the present case, founded only upon the agreement of July 2,1877, in which the defendant set up the same defenses as in this case. In the opinion our Brother Mitchell thus speaks of that paper: “ This writing is the foundation of the present bill. By it the appellant clearly constituted himself a trustee, and became liable to account in any court having jurisdiction over him, not by virtue of any statute as to trusts in common, but by the general jurisdiction of chancery to compel performance of equitable duties, or the enforcement of equitable rights, wherever the party may be found, without reference to the locality of the land. It is sufficient to refer to our own recent ease of Jennings v. Beale, 158 Pa. 283.” We decided in that case that this defendant was liable to account as a trustee for his transactions under the agreement of July 2, 1877, and we see no reason to depart from that ruling now. On the contrary, the paper of October 11,1873, which, it appears by the testimony in this case had not been discovered when the bill in that case was filed, contains an additional and a larger obligation to account for all the transactions growing out of the original purchase of the lands in controversy at the sheriff’s sale of these lands as the property of Joseph F. Clark, the father of the plaintiff and defendants. By that paper also an express trust was created, as well as an obligation to reconvey upon indemnity being made, inasmuch as Junius thereby agreed that if he made sales of the lands, or any part thereof, he would apply the pro[334]*334ceeds to repay himself for any moneys paid out by him, and if there was any surplus left over after paying himself for moneys he had paid out, or was liable to pay, he would pay such surplus to the said Joseph F. Clark, his heirs or assigns. There cannot be the least question’ as to the efficacy of this paper to establish an express trust on the part of Junius R. Clark in favor of the plaintiff in this case, as well as the other members of the family. As the entirely undisputed testimony abounds with proof of the numerous transactions made by the defendant with these various properties, and of the large receipts of royalties for oil and other matters, and as he has never settled or filed any account of those transactions, it seems to be too plain for argument that he is bound to furnish a full account of all his dealings and transactions with the several properties and their products. As this question has been already decided it is unnecessary to elaborate it any further.
As to the contention that the bill is an ejectment bill and must therefore be dismissed, we consider it to be entirely untenable. The bill is filed against a trustee for an account and also for a partition of the lands in question. As the plaintiff, if her averments are sustained, is entitled to a conveyance of her apportionable interest in the land by virtue of her equitable title thereto, there is not the slightest question as to the jurisdiction of the court to award partition. Equitable jurisdiction in partition in all cases was expressly given to the courts of common pleas by the Act of July 7, 1885, P. L. 257. But it had been decided long before the passage of that act that an equitable estate is sufficient in Pennsylvania to sustain a partition even at law : Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99. In Hayes’s Appeal, 123 Pa. 110, we said: “ In cases of equitable estates and defenses, chancery will take jurisdiction of the whole matter: Adams’s Eq. 230; Story’s Eq. Jurisprudence, 661. An equitable estate is sufficient in Pennsylvania to support a partition even at law; it is sufficient to show a clear equitable right to the relief prayed for: Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99. If the disputed titles are equitable, courts of equity will exercise jurisdiction to settle them, and will then grant final relief by way of partition under the same bill: Pomeroy’s Eq. Jurisprudence, sec. 1388. Such a bill is not multifarious, because the partition is decreed [335]*335incidentally, to complete the measure of relief and avoid multiplicity of suits.” There is not the slightest doubt that this is a bill for an account and for partition founded upon an equitable title, and hence it is beyond all question that the jurisdiction must be sustained.
The objection to the jurisdiction of the court of common pleas of McKean county, on the ground that the defendant was a resident of Warren county at the inception of the trust, if there was any trust, under the provisions of the Act of June 14,1836, P. L. 632, is equally untenable. As the bill is for partition as well as for account, and the lands are all in McKean county, and jurisdiction having once attached for one purpose, it will be sustained for all purposes: Winton’s Appeal, 97 Pa. 385; McGowin v. Remington, 12 Pa. 56; Wilhelm’s Appeal, 79 Pa. 120; Ahl’s Appeal, 129 Pa. 49. Equity has jurisdiction in all cases of partition: Brown’s Appeal, 84 Pa. 457.
This same objection was made in Hayes’s Appeal, supra, and was effectually disposed of by our Brother Clabk in the opinion. After stating the contention that under the act of 1836 the court of common pleas of the county where the trustee resided alone had jurisdiction, although the bill was for partition of lands lying in another county, the opinion proceeds: “ This contention involves an entire misconception of the purpose and meaning of the act of 1836. That act, if it has any application to a trust created under the circumstances here alleged, has no application to proceedings at law or in equity in respect to the title; it refers rather to the control and management of the trustee where the trust has been created by deed or will, or has been otherwise established.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice Green,
Although there are eighty assignments of error in this case, none of them are pressed upon our attention in the argument of the learned counsel for the appellant except the very few which relate to the jurisdiction of the court, and the two matters arising under the fifty-ninth and sixty-eighth assignments. We do not think it commendable practice to assign error to all the rulings of the court below simply because they are adverse to the party appealing, when, in point of fact, the great bulk of them are upon undisputed conditions of the testimony and upon legal propositions which cannot possibly be controverted.
In the present case we are most clearly of opinion that the plaintiffs’ claim rests both upon the sealed agreement made by [333]*333Junius R. Clark with his father on October 11,1873, and upon the mutual agreement, also under seal, made by all the heirs of Joseph F. Clark, on July 2, 1877, and also upon the paper of July 9, 1877. AH of these papers fully express the relation of trust and confidence established between the defendant, J. R. Clark, and the other members of the family, and in our opinion there can be no manner of doubt that in all the matters in controversy Junius R. Clark was a technical trustee, as to the properties and all the transactions growing out of them, for his mother and his brothers and sisters as cestuis que trust. So far as the agreement of July 2, 1877, is concerned, the precise question has already been decided by this Court in the case of Clark v. Clark, 180 Pa. 186. That was a bill filed against this same defendant by a'nother sister claiming, practically, the same relief as to accounting as is sought in the present case, founded only upon the agreement of July 2,1877, in which the defendant set up the same defenses as in this case. In the opinion our Brother Mitchell thus speaks of that paper: “ This writing is the foundation of the present bill. By it the appellant clearly constituted himself a trustee, and became liable to account in any court having jurisdiction over him, not by virtue of any statute as to trusts in common, but by the general jurisdiction of chancery to compel performance of equitable duties, or the enforcement of equitable rights, wherever the party may be found, without reference to the locality of the land. It is sufficient to refer to our own recent ease of Jennings v. Beale, 158 Pa. 283.” We decided in that case that this defendant was liable to account as a trustee for his transactions under the agreement of July 2, 1877, and we see no reason to depart from that ruling now. On the contrary, the paper of October 11,1873, which, it appears by the testimony in this case had not been discovered when the bill in that case was filed, contains an additional and a larger obligation to account for all the transactions growing out of the original purchase of the lands in controversy at the sheriff’s sale of these lands as the property of Joseph F. Clark, the father of the plaintiff and defendants. By that paper also an express trust was created, as well as an obligation to reconvey upon indemnity being made, inasmuch as Junius thereby agreed that if he made sales of the lands, or any part thereof, he would apply the pro[334]*334ceeds to repay himself for any moneys paid out by him, and if there was any surplus left over after paying himself for moneys he had paid out, or was liable to pay, he would pay such surplus to the said Joseph F. Clark, his heirs or assigns. There cannot be the least question’ as to the efficacy of this paper to establish an express trust on the part of Junius R. Clark in favor of the plaintiff in this case, as well as the other members of the family. As the entirely undisputed testimony abounds with proof of the numerous transactions made by the defendant with these various properties, and of the large receipts of royalties for oil and other matters, and as he has never settled or filed any account of those transactions, it seems to be too plain for argument that he is bound to furnish a full account of all his dealings and transactions with the several properties and their products. As this question has been already decided it is unnecessary to elaborate it any further.
As to the contention that the bill is an ejectment bill and must therefore be dismissed, we consider it to be entirely untenable. The bill is filed against a trustee for an account and also for a partition of the lands in question. As the plaintiff, if her averments are sustained, is entitled to a conveyance of her apportionable interest in the land by virtue of her equitable title thereto, there is not the slightest question as to the jurisdiction of the court to award partition. Equitable jurisdiction in partition in all cases was expressly given to the courts of common pleas by the Act of July 7, 1885, P. L. 257. But it had been decided long before the passage of that act that an equitable estate is sufficient in Pennsylvania to sustain a partition even at law : Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99. In Hayes’s Appeal, 123 Pa. 110, we said: “ In cases of equitable estates and defenses, chancery will take jurisdiction of the whole matter: Adams’s Eq. 230; Story’s Eq. Jurisprudence, 661. An equitable estate is sufficient in Pennsylvania to support a partition even at law; it is sufficient to show a clear equitable right to the relief prayed for: Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99. If the disputed titles are equitable, courts of equity will exercise jurisdiction to settle them, and will then grant final relief by way of partition under the same bill: Pomeroy’s Eq. Jurisprudence, sec. 1388. Such a bill is not multifarious, because the partition is decreed [335]*335incidentally, to complete the measure of relief and avoid multiplicity of suits.” There is not the slightest doubt that this is a bill for an account and for partition founded upon an equitable title, and hence it is beyond all question that the jurisdiction must be sustained.
The objection to the jurisdiction of the court of common pleas of McKean county, on the ground that the defendant was a resident of Warren county at the inception of the trust, if there was any trust, under the provisions of the Act of June 14,1836, P. L. 632, is equally untenable. As the bill is for partition as well as for account, and the lands are all in McKean county, and jurisdiction having once attached for one purpose, it will be sustained for all purposes: Winton’s Appeal, 97 Pa. 385; McGowin v. Remington, 12 Pa. 56; Wilhelm’s Appeal, 79 Pa. 120; Ahl’s Appeal, 129 Pa. 49. Equity has jurisdiction in all cases of partition: Brown’s Appeal, 84 Pa. 457.
This same objection was made in Hayes’s Appeal, supra, and was effectually disposed of by our Brother Clabk in the opinion. After stating the contention that under the act of 1836 the court of common pleas of the county where the trustee resided alone had jurisdiction, although the bill was for partition of lands lying in another county, the opinion proceeds: “ This contention involves an entire misconception of the purpose and meaning of the act of 1836. That act, if it has any application to a trust created under the circumstances here alleged, has no application to proceedings at law or in equity in respect to the title; it refers rather to the control and management of the trustee where the trust has been created by deed or will, or has been otherwise established. In 1836, and for twenty years thereafter, ejectment was the only means by which a trust might be asserted against the holder of the legal title; and that being a local action was necessarily brought in the common pleas of the county where the lands were situated. It is absurd to suppose that the legislature intended that an ejectment might be brought in one county to recover the possession of lands lying in another county.”
It is also argued that the pendency of another bill of Mary E. Clark in the common pleas of Philadelphia county against Junius R. Clark is a bar to the present proceeding. It is sufficient to say that the bill was brought by another person, it did [336]*336not embrace the agreement of October 11,1873, and it did not ask for partition of the lands in McKean county, nor for any partition, nor for anything more than an account. The contention is destitute of merit.
We cannot sustain the fifty-ninth assignment. There is no evidence to show that Joseph F. Clark intended to make a present to Junius R. Clark of the money due him on the Kings-bury mortgage, nor is there any evidence to show that Junius R. Clark paid any money to his father for the assignment. But Junius R. Clark himself testifies that his father made the ' assignment to him at his request, because the matter was complicated, and “that for some reason the parties would not negotiate with father and I wrote to him he had better make an assignment to me and I would see what I could do.” He said also that he finally collected $4,500 of this money; that he had a statement of his account with his father in regard to it, and that he paid part of it to his father. As a matter of course, the court could not say there was no evidence of any agreement to apply the moneys received from this source on account of the writing of October 11,1873.
There is a question arising as to the liability of Junius R. Clark as a trustee for the proceeds received by him after the purchase by him and his brother of a part of the trust estate from Wilcox and Early. We express no opinion upon that subject at this stage of the case, and except it out of the operation of the decree as confirmed by us.
We do not see how we can sustain the sixteenth finding of the court below against Edward K. Clark, holding him liable to the plaintiff as a trustee ex maleficio, and therefore we feel obliged to sustain the sixty-eighth assignment of error. While it is perhaps correct to say that Edward K. Clark, being a co-tenant with his brothers and sisters of the trust estate, was not at .liberty to purchase and hold any part of the trust estate for his own benefit as against them, and a very strong argument could be made to that effect in support of the sixteenth finding, yet it is also true that the plaintiff acquiesced in this claim of title by Edward K. Clark for many years, and, what is of still more importance, she has not made any adverse claim to it in her bill. She has said nothing about it in the bill, she has not asked for any relief as against him on that account, nor has she [337]*337asked for any decree of any kind against him on that, or on any other account. He has, therefore, had no notice of any such claim, and in the present state of the pleadings we do not see how any such claim can be sustained. We therefore sustain the sixty-eighth assignment and reverse so much of the decree as relates to him.
The decree of the court below is affirmed in all respects except as to so much thereof as relates to Edward K. Clark and holds him to be a trustee ex maleficio of the part of the property purchased by him from C. R. Early and requires him to account for the proceeds of that property, and as to so much of the decree as relates to that subject the same is hereby reversed, and the record is remitted to the court below for further proceedings at the cost of the appellants.