Heath's Appeal , 100 Pa. 1 ( 1882 )

Mr. Justice Paxson

delivered the opinion of the court, February 27th 1882.

The court below sustained the demurrer and dismissed the plaintiff’s bill, upon the ground that it sets forth no such cause of action as entitled him to be heard in a court of equity.

If the bill had set forth a mere naked agreement on the part of Slocum, the purchaser at the sheriff’s sale, to hold the property purchased at said sale, Avith his OAvn money, for the benefit of Heath, the appellant, the case Avould have been Avithin the ruling in Dollar Savings Bank v. Bennett, 26 P. F. S. 402. There are averments in the bill, liOAvever, Avhich take it out of this line of cases. They are, 1st, that by means of the arrangement referred to, persons present at the sale Avere prevented, from bidding ; a bid on one of the pieces of land Avas AvithdniAvn, and all the'pieces were allowed to be sold collectively for a nominal sum. 2d. That in pursuance of an agreement to that effect, the appellant furnished a portion of the money necessary to pay the costs of the sheriff’s sale. Here is something more than a naked promise to hold the property in trust for Heath. Other bidders were silenced because they were told that Slocum was buying for the defendant in the execution; several properties which the law required to be sold separately were put up and sold in a lump, for a nominal sum, while the costs of the sale were in part paid by Heath. "We think the facts as set forth in the bill bring the case within the principle of Sweetzer’s appeal, 21 P. F. S. 264, where a sheriff’s deed was held to be a mortgage, and the grantee named therein a trustee for the man whose land he had bought at sheriff’s sale; and the more recent case of Christy v. Sill, 11 Pittsburgh Legal Journal (N. S.) 101, where the purchaser at sheriff’s sale, who had falsely represented at said sale that he was bidding for the family, and by means of this and other fraudulent representations induced other parties not to bid, and procured the propery to be knocked down to him for a less sum than its value, was held to be a trustee ex maleficio for the parties thus defrauded.

We are of the opinion that it was error to sustain the demurrer.

• Decree reversed at the costs of the appellees, and a procedendo awarded.