Feely v. Hoover , 130 Pa. 107 ( 1889 )

Opinion,

Me. Justice Mitchell:

There was no room in this case for the application of the doctrines of resulting trusts, or trusts ex maleficio. The evidence is entirely clear that Capt. Barr made the purchase exclusively in the interests of his clients, the masonic lodge, and without any previous agreement or arrangement for the continuance of an interest in any of the Feelys. His testimony is uncontraclicted, and it establishes that he expected to have to buy in the land for his clients, and that he considered it worth about the amount of the debt, and therefore that there would be nothing left for the debtors. His adjournment of the sale, and securing the withdrawal of Arnold’s bid, was also solely in the interest of his clients, there being a prior judgment against the same defendants, or at least some of them, open on the docket, which Albert Feely said was paid; but, in the absence of personal knowledge of that fact, Barr, as a prudent lawyer, desired to avoid the risk of bidding the property up to cover the prior judgment., and having to pay the money into court where it might ultimately be awarded to the prior creditor. In all this there was nothing on which to found the notion of a trust of any kind for the Feelys.

Having acquired the title by purchase at the sheriff’s sale, Barr seems to have been convinced that the land was more valuable than he had thought, and, as neither he nor his clients desired anything more than the payment of their debt, he was willing to carry out the proposed arrangement, by which the outstanding interests of the other members of the Feely family should be conveyed to him, and the land and its proceeds disposed of to the several parties in accordance with the agreement. This was entirely competent and legal for him to do, and had the deed to Mrs. Sarah J. Feely been made and delivered at that time no question as to its validity could have arisen: Winch v. James, 68 Pa. 297. But the difficulty is that the deed was not so made, nor is there any evidence that such was the agreement at the time. On the contrary, the deed was made to Miles and William Feely, and handed to William on December 12, 1882. There is no doubt that in so doing Barr was carrying out the agreement as he understood it, and there is no evidence that he was not right in such understanding, except the fact that “ after a little time,” as Barr says, — “ I cannot tell how long, — William brought the deed over to me, and said, ‘ That deed was not the way they wanted it.’ ” This may mean either that it was not in accordance with the agreement at the time it was made, or not in accordance with the present desire of the parties; and the rest of Barr’s testimony makes it clear that the latter was the real meaning. “ I told him,” he says, “ that was the way I understood it was to be made, and I did not care about making another deed, unless somebody would pay me for it; and he went.away, and after a while he or some one came to me, and said if I would make a deed either he or some one would pay me for it; and then I made a deed, and delivered it to Miles.” This was the deed to Sarah J. Feely. Just when it was made is not clear. It was dated back to September, 1882, the date of the previous deed to William and Miles, but was not delivered until after August 27, 1884. In the mean time the Hoover judgment had been entered, and was a lien on Miles and William Feely’s interest in the land, whatever that was. Whether they had any interest depends on whether or not the deed to them was delivered.

That the leaving of the deed with William was intended by Barr as a delivery does not admit of doubt, and there is no evidence that the other parties refused to receive it as such. On the contrary, they did not return it immediately, — all the evidence is that of Barr that it was “ after a little time; I cannot tell how long;” which may mean a day, or a week, or a month, — and when they did bring it back it was not with a clear declaration that it was not according to agreement, but only that it was “ not the way they wanted it; ” which, as already said, might, and under the circumstances must, be taken to mean that it was not according to their present wishes. They left the matter in this indefinite condition for some time. How long is again in doubt, as Barr says, only, “ he went away, and after a while he or some one came, and said if I would make a deed,” etc.; but, whatever the time was before they came back to make positive arrangements for a new deed, they did not follow it up, and get the deed, until August, 1884, more than a year and a half after the handing of the first deed to William, and two months after the entry of the Hoover judgment had made the matter urgent. Under such evidence there is not the slightest doubt that the leaving of the deed with William was a delivery; that the title was in William and Miles at the time of the entry of the Hoover judgment; and, whether or not a mere surrender of their deed, and the making of a new one by their grantor, Barr, to Sarah J. Feely, could, under any circumstances, pass the legal title to her', it is quite clear that it could not do so as against the lien of the creditor’s judgment which had previously attached.

The defendants’ point should therefore have been affirmed, and the verdict directed for defendants.

Judgment reversed.