The opinion of the court was delivered, January 3d 1870, by
Sharswood, J. —
The most important question which arises on this record, the decision of which will dispose of the third, fourth and fifth assignments of error, is, whether there was sufficient evidence either of a resulting trust, or that the deed was a mortgage. Both these things may, no doubt, be proved by oral testimony, but it is equally certain that the evidence ought to be clear, explicit and unequivocal.
If it is true that Thomas McGrinity bought this farm,with four[43]*43teen hundred dollars of his own money, and six hundred dollars borrowed of his brother John, an absolute deed having been made to John as security for the repayment of this loan, then, indeed, the possession and enjoyment of it by the defendant below is a great wrong, not to the plaintiffs, however, but to the creditors of their father. For, when his estate was finally settled in the Orphans’ Court, after his death, within five years from this transaction, the amount of his debts, as reported by the auditor, was f>1906.09, to pay which, all that remained was $48.85. The whole of the alleged interest of Thomas in the farm would have been insufficient to have paid them. Had it produced, on a sale, the same price as was given for it, after repaying John his $600, there would have been about seventy-five cents on the dollar for them: as it was, they received but three. We come, then, to the consideration of the evidence, with a very strong presumption against the alleged trust or mortgage. Thomas lived on the farm from the time of the sale to his death, more than two years. Nobody in the neighborhood could have believed or suspected that he had any interest in it, so profoundly must the secret have been kept between these three men, John and Thomas MeGrinity and John Mason. Creditors are usually vigilant and sharpsighted in looking after their rights, and such a fact as this now alleged, could not have escaped them. John Mason, indeed, had left the county, but where was Mendal, who drew the articles, Armstrong, who drew the deed, or Esquire Rutledge, before whom the deed and mortgage were executed and acknowledged ? John MeGrinity, or his family, were then in possession. The widow of Thomas claimed and was allowed her three hundred dollars out of his estate. So that we are warranted in believing that not a syllable of the matter was breathed at that time, either by the widow or any one of his friends or acquaintances. There was, also, certainly some evidence, apart from the record .of the Orphans’ Court, that Thomas had held himself out as the tenant of John ; though the judge gave it as his opinion that the evidence on the subject of the lease was very unsatisfactory: it is not easy to comprehend why. Thomas, while in possession, told his neighbor, Daniel Dunlap, who applied to him about the repair of a line fence between them, that “ he had nothing to do with it: was only a renter under John.” He said the same thing to Nathaniel Dunlap, that “ he was nothing but a cropper, or renter.” He referred him to John, to get the cutting of the grain which Mason had put in, and he got it from John, who employed and paid him. Moreover, he told Isaac Pershing, about the time of the transaction, that it was his brother who had the money “ that he invested in land, the Mason farm.” “ He was going to farm it, because he was a farmer, and his brother John was not.” The testimony of B. Hanna and Ralston are to some declarations, and not very con[44]*44sistent, for at one time John told Ralston that the farm “ would be Thomas’s finally: he was trying to help him along.”
We come to the examination of the testimony of John Mason, upon which the whole cause rests. The credit of the witness was for the jury; but especially in a case where a trust, or the conversion of an absolute deed into a mortgage is attempted to be made out, by parol evidence, the court and jury exercise the functions of á chancellor, and the evidence, assuming the testimony of the witnesses to be true, ought to be such as would satisfy his conscience. “ The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to declare their effect, and determine whether the claim or the defence is well founded. A chancellor is judge, both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury. And if he does, their verdict is only advisory. It is not conclusive upon him. Whenever, therefore, upon the trial of an ejectment, founded upon an equitable title, the court is of the opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give binding instructions to that effect to the jury Strong, J., in Todd v. Campbell, 8 Casey 252. There was no sufficient evidence in the testimony of Mason, of a resulting trust. That arises from the fact of the payment of the purchase-money, or that it was the money of the alleged cestui que trust which was paid. There was no evidence that Thomas had paid $1400, and borrowed $600 of John, to make up the balance. The evidence was very distinct that John had paid the hand money: indeed, it is not denied, for it is pretended that was part of the $600 which he was to lend. “After the article was drawn,” says the witness, “John put his hand in his pocket-book, and counted down not quite $200, and had not quite enough, and he turned to Thomas and asked him for it, and he got it.” So in regard to the payment made on the execution of the deed.' “John took out his pocket-book, all standing around, and counted .out $1400, paper money.” John executed the mortgage to secure the balance of $400, and the witness adds: “John paid, the balance of money on mortgage.” Moreover, there was not a scintilla of evidence that Thomas ever had in his name so much money. Mason testifies, indeed, that Thomas told him that his money was in Holmes’ “brokers” office, in Pittsburg. But no evidence was given of this most material fact. Here was an index pointing directly to the place where the evidence could be had — evidence of the fact that Thomas had the money there and drew it out at that time, a fact, if proved, worth more than any declaration. The plaintiffs must be presumed to have known what Mason would testify, and it was a pregnant circumstance, that no attempt was made to prove in any other way, [45]*45than by Thomas’s own declaration, that he had so large a sum of money at his command. It is particularly so, in connection with the fact that his estate proved to be insolvent. Nor was there any evidence of an admission by John, at any time afterwards, that Thomas had paid any part of the purchase with his own money. Parol evidence of conversations and negotiations, prior and leading to a written contract, are inadmissible to vary it, but though they certainly may be shown to prove a fraud or trust, they should be accompanied with clear evidence that the arrangement continued the same up to the time of the execution of the writing. The whole evidence, indeed, here, consists of Mason’s testimony of conversations with Thomas and John before the sale took place, as to how the payment was to be made. What occurred, at the time either the articles or the deed was executed, was very vague and insignificant. Then was the- time when we ought to expect that there would have been a clear recognition of the terms of the arrangement. No bystander could possibly have understood anything else from what transpired at both those times, than that John was buying and paying for the property.
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The opinion of the court was delivered, January 3d 1870, by
Sharswood, J. —
The most important question which arises on this record, the decision of which will dispose of the third, fourth and fifth assignments of error, is, whether there was sufficient evidence either of a resulting trust, or that the deed was a mortgage. Both these things may, no doubt, be proved by oral testimony, but it is equally certain that the evidence ought to be clear, explicit and unequivocal.
If it is true that Thomas McGrinity bought this farm,with four[43]*43teen hundred dollars of his own money, and six hundred dollars borrowed of his brother John, an absolute deed having been made to John as security for the repayment of this loan, then, indeed, the possession and enjoyment of it by the defendant below is a great wrong, not to the plaintiffs, however, but to the creditors of their father. For, when his estate was finally settled in the Orphans’ Court, after his death, within five years from this transaction, the amount of his debts, as reported by the auditor, was f>1906.09, to pay which, all that remained was $48.85. The whole of the alleged interest of Thomas in the farm would have been insufficient to have paid them. Had it produced, on a sale, the same price as was given for it, after repaying John his $600, there would have been about seventy-five cents on the dollar for them: as it was, they received but three. We come, then, to the consideration of the evidence, with a very strong presumption against the alleged trust or mortgage. Thomas lived on the farm from the time of the sale to his death, more than two years. Nobody in the neighborhood could have believed or suspected that he had any interest in it, so profoundly must the secret have been kept between these three men, John and Thomas MeGrinity and John Mason. Creditors are usually vigilant and sharpsighted in looking after their rights, and such a fact as this now alleged, could not have escaped them. John Mason, indeed, had left the county, but where was Mendal, who drew the articles, Armstrong, who drew the deed, or Esquire Rutledge, before whom the deed and mortgage were executed and acknowledged ? John MeGrinity, or his family, were then in possession. The widow of Thomas claimed and was allowed her three hundred dollars out of his estate. So that we are warranted in believing that not a syllable of the matter was breathed at that time, either by the widow or any one of his friends or acquaintances. There was, also, certainly some evidence, apart from the record .of the Orphans’ Court, that Thomas had held himself out as the tenant of John ; though the judge gave it as his opinion that the evidence on the subject of the lease was very unsatisfactory: it is not easy to comprehend why. Thomas, while in possession, told his neighbor, Daniel Dunlap, who applied to him about the repair of a line fence between them, that “ he had nothing to do with it: was only a renter under John.” He said the same thing to Nathaniel Dunlap, that “ he was nothing but a cropper, or renter.” He referred him to John, to get the cutting of the grain which Mason had put in, and he got it from John, who employed and paid him. Moreover, he told Isaac Pershing, about the time of the transaction, that it was his brother who had the money “ that he invested in land, the Mason farm.” “ He was going to farm it, because he was a farmer, and his brother John was not.” The testimony of B. Hanna and Ralston are to some declarations, and not very con[44]*44sistent, for at one time John told Ralston that the farm “ would be Thomas’s finally: he was trying to help him along.”
We come to the examination of the testimony of John Mason, upon which the whole cause rests. The credit of the witness was for the jury; but especially in a case where a trust, or the conversion of an absolute deed into a mortgage is attempted to be made out, by parol evidence, the court and jury exercise the functions of á chancellor, and the evidence, assuming the testimony of the witnesses to be true, ought to be such as would satisfy his conscience. “ The judge alone is the chancellor. The province of the jury is to aid him in ascertaining the facts out of which the equities arise. If the facts are not disputed, he is to declare their effect, and determine whether the claim or the defence is well founded. A chancellor is judge, both of the equity and of the facts. It is in his discretion whether he will send an issue to a jury. And if he does, their verdict is only advisory. It is not conclusive upon him. Whenever, therefore, upon the trial of an ejectment, founded upon an equitable title, the court is of the opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give binding instructions to that effect to the jury Strong, J., in Todd v. Campbell, 8 Casey 252. There was no sufficient evidence in the testimony of Mason, of a resulting trust. That arises from the fact of the payment of the purchase-money, or that it was the money of the alleged cestui que trust which was paid. There was no evidence that Thomas had paid $1400, and borrowed $600 of John, to make up the balance. The evidence was very distinct that John had paid the hand money: indeed, it is not denied, for it is pretended that was part of the $600 which he was to lend. “After the article was drawn,” says the witness, “John put his hand in his pocket-book, and counted down not quite $200, and had not quite enough, and he turned to Thomas and asked him for it, and he got it.” So in regard to the payment made on the execution of the deed.' “John took out his pocket-book, all standing around, and counted .out $1400, paper money.” John executed the mortgage to secure the balance of $400, and the witness adds: “John paid, the balance of money on mortgage.” Moreover, there was not a scintilla of evidence that Thomas ever had in his name so much money. Mason testifies, indeed, that Thomas told him that his money was in Holmes’ “brokers” office, in Pittsburg. But no evidence was given of this most material fact. Here was an index pointing directly to the place where the evidence could be had — evidence of the fact that Thomas had the money there and drew it out at that time, a fact, if proved, worth more than any declaration. The plaintiffs must be presumed to have known what Mason would testify, and it was a pregnant circumstance, that no attempt was made to prove in any other way, [45]*45than by Thomas’s own declaration, that he had so large a sum of money at his command. It is particularly so, in connection with the fact that his estate proved to be insolvent. Nor was there any evidence of an admission by John, at any time afterwards, that Thomas had paid any part of the purchase with his own money. Parol evidence of conversations and negotiations, prior and leading to a written contract, are inadmissible to vary it, but though they certainly may be shown to prove a fraud or trust, they should be accompanied with clear evidence that the arrangement continued the same up to the time of the execution of the writing. The whole evidence, indeed, here, consists of Mason’s testimony of conversations with Thomas and John before the sale took place, as to how the payment was to be made. What occurred, at the time either the articles or the deed was executed, was very vague and insignificant. Then was the- time when we ought to expect that there would have been a clear recognition of the terms of the arrangement. No bystander could possibly have understood anything else from what transpired at both those times, than that John was buying and paying for the property. If the fact was otherwise, it can only be accounted for by supposing that, for some reason not explained to Mason, there was a settled purpose to conceal it. At the execution of the articles, Thomas again said that the money was at Holmes’s, in Pittsburg, that he must go after it: but he does not appear then to have asserted that it waslhis. Both the articles and the deed were handed to Thomas, to keep, with a declaration by John, “take that, it is for you,” or “well, ’tis for you,” the witness could not distinctly recollect which. So much as to the resulting trust. In regard to the effort to convert the absolute deed into a mortgage, the case rests on the same kind of evidence. John admitted to Mason, that he had agreed to lend Thomas $600, and not charge him interest, for seven years; and, afterwards, he said, “if I loan him the $600, I must have the writings all drawn in my name. I will article with you for the farm. I will pay the money, and hold the land as security, till the $600 is paid back.” This action of ejectment does not appear to have been commenced until after John’s death. It would be of the most dangerous consequence, to permit a jury to sweep away a man’s farm from his widow and children, after his death, by the breath of a single witness, of conversations and declarations of this loose and indefinite character. The only writing produced was inconsistent with the story. It was Mason’s own letter to John, in which he recognises clearly him, and him only, as the purchaser, and that he was to pay all the money. We think, therefore, that there was not sufficient evidence to go to the jury.
It remains to consider the first two assignments of error, which relate to the record of the Orphans’ Court. That record Was-offered, objected to generally, and admitted for the defendants. [46]*46The plaintiffs did not require, as they might have done, that the object of the offer should be stated, and then the evidence, if admitted, could have been limited to that object. The defendants may have had, therefore, some reason to believe, when it was admitted generally, that it was good evidence of any fact which appeared on its face. It showed a decree of the court in favor of John, for one year’s rent of the farm, due him by Thomas, on a lease dated January 1st 1851. It is highly probable, then, that the defendants were taken by surprise, when the learned judge instructed the jury that “ the entry in the auditor’s report was not evidence of the fact” of a tenancy. In this, he was clearly right. The plaintiffs were neither parties nor privies to that proceeding: Sample v. Coulson, 9 W. & S. 65. The judge was bound to admit the record in evidence, if it was admissible for any purpose, and it was clearly admissible to-show the insolvency of Thomas’s estate. There was no error, therefore, in this instruction. Eor the surprise, the remedy of the plaintiffs was by a motion for a new trial. On another trial they may be able to show the existence and loss of the lease, by other testimony.
Judgment reversed, and venire facias de novo awarded.