Dollar Savings Bank v. Bennett , 76 Pa. 402 ( 1874 )

Mr. Justice Sharswood

delivered the opinion of the court, November 9th 1874.

This was an action of assumpsit. The declaration contained two special counts and the common count for money had and received. It is essential to maintain this action that the promise or undertaking of the defendant should be founded upon a sufficient legal consideration — either some benefit to the promissor or some injury to the promissee. Nothing is clearer in principle or better settled by authority than that a mere naked verbal agreement by a purchaser at a sheriff’s sale, with his own money, that he will hold the premises in trust for the defendant — neither vests any equitable estate in the defendant under the statute which prohibits parol declarations of trust — so that no claim to the money could exist in him under the common count — nor does it give any ground for an action, being a mere nudum pactum. The mortgagees had a legal right to proceed on their judgment-bond and to become the purchasers at the sale, if they were the highest and best bidders. There may have been in the-special count a sufficient allegation of consideration, and there may have been evidence of it given upon the trial, which might have been left to the determination of the jury. Upon these questions we do not feel called upon to express any opinion. The learned judge below evidently did not advert to these vital points in the ease in affirming, as he did without qualification, the first two propositions submitted to him by the plaintiff below. No consideration for the alleged promise is adverted to in either of these propositions. Sweetzer’s Appeal, 21 P. F. Smith 264, is not opposed to this, for there Chief Justice Thompson states in his opinion, and it was evidently the turning-point of the case, “ at the time of the sale it was made known to creditors that the property was simply being put in a shape to bring money on mortgage to pay Sweetzer’s debt. The master finds that at the sale the Jiffkins, Sherrerd and Sweetzer all represented that the sale was merely an arrangement for the benefit of Sweetzer.” In Danzeisen’s Appeal, 23 P. F. Smith 65, the conveyance was without consideration upon a parol promise by the grantee to raise money by a mortgage of the land to pay the grantor’s debts, and the present Chief Justice says in the opinion : “Itis very evident that the deed was a mortgage or a trust ex maleficio would arise; for when the deed was delivered no consideration passed. Miller procured the estate without payment of any purchase-money, and therefore stood in no better situation in point of fact than one in whose name a deed is taken by another, who pays the purchase-money.” And again : “ It would be different had the deed been intended to enable Miller (the grantee) to raise money by a sale, for there Danzeisen (the grantor) would intend to pass an absolute estate, and to trust the promise of Miller to apply the proceeds to his use ; a breach of such a promise would not convert Miller into a trustee, and the case in principle would resemble that of Barnet v. Dougherty, 8 Casey 371.” In Boynton v. Housler et al., 23 P. F. Smith 458, the purchaser on the day preceding the sale said, that “if they would not interpose or bid at the sale and have it bid off as low as possible, she (the widow of the party whose estate was sold) should have the homestead.”

These cases, then, upon which the defendant in error mainly relies to support the propositions which the learned judge affirmed, do not sustain his contention. It is unnecessary to consider the other errors assigned.

Judgment reversed, and a venire facias de novo awarded.