The opinion of the court was delivered, by
Woodward, C. J.
John M. Jordan, by a deed dated 23d October 1817, assigned and transferred all his interest in his wife’s estate to Siter & Beaver, in trust, to pay the annual proceeds thereof to her for life, and after her decease to pay the principal to their only son, Mitchell Jordan, afterwards called Andrew Mitchell Jordan.
After John M. Jordan’s death, his wife Ann married Hiram Taylor about the year 1825, and continued to reside in Chester county until 1835, when they removed to Cecil county, Maryland, and finally to Baltimore, where Taylor died in 1859 — his wife in 1862.
Andrew Mitchell Jordan was born August 3d 1817, and resided with his mother and step-father till they removed to Maryland. He stayed in Pennsylvania to study medicine, and in 1838-39 undertook to attend lectures in Philadelphia, but had fallen into grossly intemperate habits, had wasted the moneys furnished him by his uncle, Edward Siter, who was his guardian, and was endeavoring to sell his expectant interest in the trust-fund created by the above deed of his father. On the 3d January 1839, Mr. Edward Siter wrote a letter to his sister, Mrs. Taylor, which brought her husband to Philadelphia to look after the boy, and he was found in the lock-up at the end of a gross debauch. Taylor took him to West Chester, and there in Mr. Lewis’s office, on the 12th January 1839, in consideration of $300 and other good causes, Jordan sold and transferred to Hiram Taylor his whole interest and expectancy in the trust-fund to accrue to him at the death of his mother, under the deed above referred to. He then went home with his step-father to Maryland, and after residing some time in his family, married and settled in Maryland, where he still continues to reside. Taylor, by his will made in 1859, devised this fund to the grandchildren of himself and wife, but after the death of his wife, in 1862, an auditor was appointed on the application of Andrew M. Jordan to make distribution of the trust,fund, he claiming it notwithstanding his deed of 1839 to [482]*482Taylor, and the Pennsylvania administrator, the Maryland executor and legatees of Taylor claiming it under and by virtue of that deed.
The validity of that deed thus became the sole point of litigation. Jordan’s claim to the fund was regarded by the representatives of Taylor as substantially a bill in equity for the rescission and cancellation of the deed, and the principal question argued both below and here was, whether a chancellor would, after the lapse of so much time, cancel the deed, even if grounds existed for its cancellation at an earlier date ?
Both the auditor and the court below seem to have been of opinion that, regarding the time and circumstances under which the deed was made, the inadequacy of the consideration, if indeed any money was paid, of which there was no evidence except the formal receipt upon the deed, and especially regarding the fact that it w*as a young man, just of age, conveying his patrimony to a step-father who had already tried, unsuccessfully, to avoid the trust created by the deed of John M. Jordan (see Siter’s Appeal, 4 Rawle 468), the deed ought to be set aside in equity, and they found in the long life of the mother, in the Maryland residence, and in the defect of our chancery jurisdiction circumstances to excuse the apparent laches in seeking to avoid the deed. Yet they did not rule the case upon these grounds, but taking all the circumstances into view they decided that the deed created the relation of trustee and cestui que trust between Taylor and Jordan, and they proceeded to state an account between them as such, and to decree the fund to Jordan less the proper costs and charges of the trustees.
Erom this decree the Pennsylvania administrator of Taylor appeals, and assigns for his principal error that the court erred in not awarding the whole fund to him, the appellant. Does the appeal raise any other question upon the record than that of the trust ?
If this had been a formal proceeding in equity by bill filed' by Jordan, he would have been obliged to put himself upon the cancellation of his deed, or the execution of the trust created by it. He must have affirmed or disaffirmed it. He could not repudiate and claim under it both in the same suit. And if he had gone for rescinding it, and had convinced the court that it was a catching bargain that ought not to be enforced against him, still he would have encountered that principle of equity that refuses relief to stale demands, and which requires conscience, good faith and reasonable diligence in parties complainant. In Roberts v. Tunstall, 4 Hare 262, the Vice-Chancellor assumed that the deed in question there might have been impeached on both grounds assumed against it if the transaction had been of recent occurrence, but on the authority of several cases refused to interpose [483]*483after eighteen years’ delay to sue, and declared that the principle of the decisions is that after so great delay the injured party must be held to have waived his right to relief — a principle which presupposes a right to set aside the transaction independently of that fact.
Nor would we have been likely to find in the circumstances of Jordan an adequate excuse for his delay. He was sui juris, and could have sued for the rescission of his deed any time after he made it in 1839. The fact that the expectant estate was suspended, as to his right of enjoyment, upon the life of his mother, would not have prevented his clearing and protecting his title. Indeed, good faith required him to impeach Taylor’s title in his lifetime, whilst he was alive to defend it, and not to lie by till his will was made and the rights of legatees had attached. Nor was there any defect of jurisdiction, for it is shown that the courts of Maryland had full chancery powers, and our courts had them as early as 1840. And even by the Act of 16th June 1836, equity powers were conferred upon this court in the city of Philadelphia to determine “ rights of property or money claimed by two or more persons in the hands or possession of a person claiming no right of property therein.”
If, therefore, the case were before us upon the question of rescission of the deed of 1839, the authorities applicable to that view of it would have to.be discussed more fully than it seems worth while to do at present, but it is apprehended they would conduct us to a conclusion unfavorable to Jordan, and would compel us to sustain the deed.
The question, however, with which we have to deal at present is not that, but is a question of trust. We cannot be mistaken in understanding the auditor and the learned judge to have ruled the case on the ground of trust, for the auditor puts the question sharply, “ Did Mr. Taylor procure this deed (the assignment of the expectant estate) with a view of making the interest therein conveyed Ms own, or' of securing it for his step-son, so that he should not have it in his power, in his unfit condition, to convey it to a stranger ?” And after considering one view of this question he adopts what he deems a more reasonable conclusion in the following words: “ But the more reasonable view to be taken of the transaction is, that Mr. Taylor, regarding his duty as one standing in the relation of a parent, hastened to Philadelphia on learning the condition of affairs, and procured the assignment to be made with a view of securing it for his step-son, so that he could not be defrauded.
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The opinion of the court was delivered, by
Woodward, C. J.
John M. Jordan, by a deed dated 23d October 1817, assigned and transferred all his interest in his wife’s estate to Siter & Beaver, in trust, to pay the annual proceeds thereof to her for life, and after her decease to pay the principal to their only son, Mitchell Jordan, afterwards called Andrew Mitchell Jordan.
After John M. Jordan’s death, his wife Ann married Hiram Taylor about the year 1825, and continued to reside in Chester county until 1835, when they removed to Cecil county, Maryland, and finally to Baltimore, where Taylor died in 1859 — his wife in 1862.
Andrew Mitchell Jordan was born August 3d 1817, and resided with his mother and step-father till they removed to Maryland. He stayed in Pennsylvania to study medicine, and in 1838-39 undertook to attend lectures in Philadelphia, but had fallen into grossly intemperate habits, had wasted the moneys furnished him by his uncle, Edward Siter, who was his guardian, and was endeavoring to sell his expectant interest in the trust-fund created by the above deed of his father. On the 3d January 1839, Mr. Edward Siter wrote a letter to his sister, Mrs. Taylor, which brought her husband to Philadelphia to look after the boy, and he was found in the lock-up at the end of a gross debauch. Taylor took him to West Chester, and there in Mr. Lewis’s office, on the 12th January 1839, in consideration of $300 and other good causes, Jordan sold and transferred to Hiram Taylor his whole interest and expectancy in the trust-fund to accrue to him at the death of his mother, under the deed above referred to. He then went home with his step-father to Maryland, and after residing some time in his family, married and settled in Maryland, where he still continues to reside. Taylor, by his will made in 1859, devised this fund to the grandchildren of himself and wife, but after the death of his wife, in 1862, an auditor was appointed on the application of Andrew M. Jordan to make distribution of the trust,fund, he claiming it notwithstanding his deed of 1839 to [482]*482Taylor, and the Pennsylvania administrator, the Maryland executor and legatees of Taylor claiming it under and by virtue of that deed.
The validity of that deed thus became the sole point of litigation. Jordan’s claim to the fund was regarded by the representatives of Taylor as substantially a bill in equity for the rescission and cancellation of the deed, and the principal question argued both below and here was, whether a chancellor would, after the lapse of so much time, cancel the deed, even if grounds existed for its cancellation at an earlier date ?
Both the auditor and the court below seem to have been of opinion that, regarding the time and circumstances under which the deed was made, the inadequacy of the consideration, if indeed any money was paid, of which there was no evidence except the formal receipt upon the deed, and especially regarding the fact that it w*as a young man, just of age, conveying his patrimony to a step-father who had already tried, unsuccessfully, to avoid the trust created by the deed of John M. Jordan (see Siter’s Appeal, 4 Rawle 468), the deed ought to be set aside in equity, and they found in the long life of the mother, in the Maryland residence, and in the defect of our chancery jurisdiction circumstances to excuse the apparent laches in seeking to avoid the deed. Yet they did not rule the case upon these grounds, but taking all the circumstances into view they decided that the deed created the relation of trustee and cestui que trust between Taylor and Jordan, and they proceeded to state an account between them as such, and to decree the fund to Jordan less the proper costs and charges of the trustees.
Erom this decree the Pennsylvania administrator of Taylor appeals, and assigns for his principal error that the court erred in not awarding the whole fund to him, the appellant. Does the appeal raise any other question upon the record than that of the trust ?
If this had been a formal proceeding in equity by bill filed' by Jordan, he would have been obliged to put himself upon the cancellation of his deed, or the execution of the trust created by it. He must have affirmed or disaffirmed it. He could not repudiate and claim under it both in the same suit. And if he had gone for rescinding it, and had convinced the court that it was a catching bargain that ought not to be enforced against him, still he would have encountered that principle of equity that refuses relief to stale demands, and which requires conscience, good faith and reasonable diligence in parties complainant. In Roberts v. Tunstall, 4 Hare 262, the Vice-Chancellor assumed that the deed in question there might have been impeached on both grounds assumed against it if the transaction had been of recent occurrence, but on the authority of several cases refused to interpose [483]*483after eighteen years’ delay to sue, and declared that the principle of the decisions is that after so great delay the injured party must be held to have waived his right to relief — a principle which presupposes a right to set aside the transaction independently of that fact.
Nor would we have been likely to find in the circumstances of Jordan an adequate excuse for his delay. He was sui juris, and could have sued for the rescission of his deed any time after he made it in 1839. The fact that the expectant estate was suspended, as to his right of enjoyment, upon the life of his mother, would not have prevented his clearing and protecting his title. Indeed, good faith required him to impeach Taylor’s title in his lifetime, whilst he was alive to defend it, and not to lie by till his will was made and the rights of legatees had attached. Nor was there any defect of jurisdiction, for it is shown that the courts of Maryland had full chancery powers, and our courts had them as early as 1840. And even by the Act of 16th June 1836, equity powers were conferred upon this court in the city of Philadelphia to determine “ rights of property or money claimed by two or more persons in the hands or possession of a person claiming no right of property therein.”
If, therefore, the case were before us upon the question of rescission of the deed of 1839, the authorities applicable to that view of it would have to.be discussed more fully than it seems worth while to do at present, but it is apprehended they would conduct us to a conclusion unfavorable to Jordan, and would compel us to sustain the deed.
The question, however, with which we have to deal at present is not that, but is a question of trust. We cannot be mistaken in understanding the auditor and the learned judge to have ruled the case on the ground of trust, for the auditor puts the question sharply, “ Did Mr. Taylor procure this deed (the assignment of the expectant estate) with a view of making the interest therein conveyed Ms own, or' of securing it for his step-son, so that he should not have it in his power, in his unfit condition, to convey it to a stranger ?” And after considering one view of this question he adopts what he deems a more reasonable conclusion in the following words: “ But the more reasonable view to be taken of the transaction is, that Mr. Taylor, regarding his duty as one standing in the relation of a parent, hastened to Philadelphia on learning the condition of affairs, and procured the assignment to be made with a view of securing it for his step-son, so that he could not be defrauded. In this view he would occupy the relation of trustee, and would not be entitled to more of the fund than would reimburse him.”
Equally distinct was the language of the learned judge, whose [484]*484conclusion was, that “ Taylor took this deed to keep the property for Jordan.”
And that both the auditor and the court intended these for their final conclusions is shown by the accounts which they respectively stated, and upon which the decree is based. The only question upon the record, then, beyond the dispute about a few dollars on one side or the other of the account, is whether there was evidence to justify the conclusion that Taylor was a trustee.
The evidence is derived from the admitted facts, that the deed was made by an intemperate young man, just of age, for an expectant estate which was his whole patrimony — that there was great danger of his parting with the estate to a stranger for what his guardian-called a song — that Taylor was moved to the rescue of the estate from impending sacrifice by the letter to his wife from her brother, and no doubt acted at her instance and with her sanction; that he stood in loco parentis to the erring young man, and was bound by that relation to look after his interests, and save them from the ruin which his evil courses were bringing upon them, and that his paternal interposition produced its natural fruits in the reclamation of the step-son, and the salvation of his estate.
Now, if we take the doctrine of the majority of the Supreme Court of the United States in the case of Jenkins v. Pye, 12 Peters 241, that a deed made by a son to his father, as a family arrangement, is not to be viewed with jealousy and suspicion, but is rather to be sustained on less proof and for a slighter consideration than when made to a stranger (which is not the doctrine of the English Chancery), still these facts and circumstances have considerable persuasive power in favor of a trust. Who shall decide that they do not establish the point ? No doubt a jury would have found the trust upon such evidence, for there is a naturalness, a verisimilitude about the facts as pointing to that conclusion which would commend them to the understandings of plain men. Taylor did just what most fathers would do to save the son’s patrimony, he took it into his own keeping, and hence a jury would almost inevitably infer he took it and kept it for the son. And if taken with that intent — if once fixed as trust, his subsequent act in devising it to his grandchildren could not divest him of his liability as trustee, nor Jordan of his rights as a cestui que trust.
But the facts have been passed upon, not by a jury, but by an auditor and judge more competent than a jury, and in circumstances more favorable for weighing them correctly than surround us, and is not great deference due to their conclusions ? Can we say there was no evidence to lead rational minds to the conviction of a trust ? Upon our avowed principles of judging can we say [485]*485there was flagrant mistake in this finding ? All primfi facie presumptions are in favor of the decree. Who alleges error must prove it. The auditor and the judge placed themselves upon all the circumstances, they overlooked nóne, they extenuated none, distorted none, and they wrote down what the voice of those circumstances spoke to their ears. Where is the evidence that proves their mistake ? It is to be found only in the unqualified terms of the deed, but if an unqualified grant was necessary to the preservation of the estate, that circumstance is accounted for. Whatever the favor with which a deed from a son to a step-father should be viewed as a family arrangement, it surely ought to have only the operation intended by the parties, and what the parties intended is the general question in the case, which having been found as it has been, we see no grounds upon which we can reverse the finding. We take the record as establishing a matter of fact, upon adequate evidence, and no hesitating doubts of ours as to-the existence of that fact can prevail against such a record.
The trust being found, the imputed laches go for nothing, because the time to call for its execution could not arrive till the mother’s death. If it be said that Taylor’s will was notice to Jordan of an adverse claim to his estate, there were only three years between the date of the will and the institution of proceedings to recover the estate, and no actual disposition of it during that interval under the will, for the life estate did not fall in till 1862. There was nothing in this delay to postpone Jordan’s right. Indeed the moment the trust is established the principles alluded to in the early part of this opinion as to backwardness in asserting rights in equity have no such application, as they would have to a question of rescission of the deed. It is not for the trustee to complain that his cestui que trust was not more vigilant, especially in view of the promptness with which he acted when the life estate had expired.
What remains of this case relates to the figures of the account. We think the auditor gave satisfactory reasons for not making larger allowances to Taylor, and that the court gave good reasons for the modifications they made in the auditor’s statement of the account.
The decree is therefore affirmed, at the costs of the appellant.