Westcott v. Edmunds , 68 Pa. 34 ( 1871 )

The opinion of the court was delivered,

by Agnew, J.

There are but two of the assignments of error in this case which need to be noticed. We think the court erred in refusing to admit in evidence the record of the equity suit between these parties in the Supreme Court 'No. 66 of January f Term 1868, in which a final decree had been made/ The subject s' in controversy in this action and in the equity suit is the same, to wit, the alleged title of Eliza H. Garretson, under the will of John Hance, to the property for which this ejectment is brought. The Supreme Court at Nisi Prius had dismissed the bill filed by Mr. Edmunds as the trustee of Mrs. Garretson after a hearing upon the merits, in which it was held that her title had been extinguished by the sheriff’s sale to Ebenezer Westcott under the mortgages against John Hance, the testator. ' Until this decree had been set aside upon an appeal, it was final, and a bar to any further litigation of the same matter, whether instituted before \j>r afterwards./The Court of Nisi Prius had jurisdiction of the question of trust, and having dismissed the plaintiff’s bill, because, as the court then decided, there was no trust, for Mrs. Garretson in the purchase made by Westcott at the sheriff’s sale, her title under the trust was concluded, while the decree remained unreversed. Had the decree been against Westcott he would have been compelled by the process of the court to convey to Mrs. Garretson the undivided half of the property upon such terms as equity might impose. It would have been final as to him, and mutuality requires the decree against her to be final also. Upon authority the case is equally conclusive, as may be seen in the following decisions: Kelsey v. Murphy, 2 Casey 78; Saylor v. Hicks, 12 Id. 392-4; Williams v. Row, 12 P. F. Smith 118. Nor does it make any difference whether the record be offered in evidence or the decree pleaded, its effect as a bar being the same: Finley v. Hanbest, 6 Casey 194. Nor whether the decree was made before or after the institution of this suit: Finley v. Hanbest, supra; Duffy v. Lytle, 5 Watts 120.

We think the court erred also in holding that, under the will of John Hance, the trust in Luther C. Edmunds for Mrs. Garret-son did not cease on the death of the mother, Mrs. Catherine Hance. The trust is in the following words, to wit: “ in trust, nevertheless, to pay the rents and proceeds thereof from time to time, as they shall be received, unto my wife Catherine, for and during all the term of her natural life, and upon the decease of my said wife, then in trust to grant, convey and assure the whole of the said estate, real and personal, unto William Slaughter Laming and Eliza Hance Garretson (children of William and Catherine Laming), their heirs, executors, administrators and assigns, for ever.” It is very clear that the active duties of the trust under this will ceased at the death of Catherine Hance, the life-tenant under the trust; and after that there remained no further duty to be executed by the trustee, but to convey the estate to the persons in remainder. But this, it has been decided, does not continue the trust, the law, in this state, executing the legal title in the remaindermen without the formality of a conveyance. It is true, that decrees have been made in such cases compelling trustees to convey to the person in remainder or to married women after coverture had ceased; but it is said this was merely to remove the cloud from the title arising from the apparent trust. Whatever might have been the impression as to the necessity of such a decree, it is now clearly settled by authoritative decision that the legal estate vests without a conveyance: Bacon’s Appeal, 7 P. F. Smith 504; Dodson v. Ball, 10 Id. 493, 501; Rife v. Greyer, 9 Id. 393, 397; Freyvogle v. Hughes, 6 Id. 228; Nice’s Appeal, 14 Wright 143; Barnett’s Appeal, 10 Id. 403. Luther C. Edmunds had therefore no title at the time of the institution of this ejectment, his trust having ceased at the death of Mrs. Hanee. But this error would have been of no importance had there been no other, as the action being instituted in the name of the-trustee for Mrs. Grarretson, his name could have been stricken off, leaving it to stand in the name of Mrs. Grarretson, as the legal party in the cause: Kaylor v. Shaffner, 12 Harris 489; Prescott v. Borough of Duquesne, 12 Wright 118. The action being thus amendable, this court will not reverse on this ground, but treat the record as if amended : Robertson v. Reed, 11 Wright 115; Trego v. Lewis, 8 P. F. Smith 469. The other assignments of error need not be noticed, as a final disposition of the whole controversy will be made in the appeal in the proceeding in equity to compel a conveyance argued before us at the same time with this writ of error. But for the error in not receiving the record of the equity suit,

The judgment is reversed.