WEEKLY NOTES OF CASES.

VOL. VI.]

THURSDAY, DEC. 5, 1878.

July, '75, 4.

Supreme Court.

[No. 17.

Bickel's Appeal. Equity Resulting trust—Trusts from the purchase of lands, when not created-Statute of limitations-When not tolled by action.

In 1845 A. and B. agreed in writing to endeavor to purchase certain lands, and to divide the profits thereof. In 1846 B. purchased the lands, took title in his own name, kept undisputed possession till his death, in 1848, after which his devisee remained in undisputed possession till 1858. In 1856 B.'s executor, in making the final payment for the lands, was credited with the amount of an award from the vendors, in which award A. afterwards claimed property from a time prior to 1845, but which claim A. had not asserted, and of which B.'s executor was ignorant at the time of the settlement. In 1869 A. filed a bill against B.'s executor and devisee for an account of a share of the profits of the lands:

Held, that under the above state of facts B. and his devisee held the lands free from any trust for A.

nies, which was made; that on Feb. 18, 1842, the complainant being indebted to R. W. Packer, assigned the said award to him as collateral security, the said Packer undertaking to collect the award with interest, and return the balance, after paying himself the amount due him; that on June 17, 1845, Offerman and Packer executed a written agreement to purchase for their joint account the said Phoenix Park Tract and adjacent lands, and divide the profits, and that, accordFeb. 5, 1878. ingly, on May 30, 1846, Packer executed articles of agreement with the said companies, for the purchase of the lands for $81,000, to be paid in instalments; that Packer purchased and entered upon the lands in pursuance of the agreement of 1845; that Packer died in 1848, having, by his will, which was proved in Berks County, devised the said lands to his daughter Helena, intermarried with R. N. Rathbun, and appointed Asa Packer his executor, the said Asa Packer and Rathbun and wife being the defendants in this suit. That in 1856 the whole consideration-money for the purchase of the lands was paid by Asa Packer, Executor, and the title was conveyed to Mrs. Rathbun, the aforesaid award in favor of Offerman, the complainant, being used in payment of the consideration; that the lands had yielded a revenue much larger than the whole consideration-money, and were subsequently sold by Mrs. Rathbun for $300,000. That in 1863 Asa Packer, executor, having failed to account to the compay-plainant for the award, or for his share of the profits of the lands, the complainant applied to the Orphans' Court of Berks County for relief, and feigned issues were sent to the Court of Common Pleas to ascertain the facts; that while the issues were pending, on Jan. 30, 1867, the complainant was induced to sign an agreement. of compromise, whereby he agreed to surrender the aforesaid agreement of 1845, to discontinue all suits pending against Rathbun and wife and Asa Packer, executor, and refer all matters in dispute respecting the award of 1841 to A. G.. Green, whose award was to be final; that this agreement of 1867 was null and void, having been signed by Rathbun "for self and wife, and not properly executed and acknowledged by Helena Rathbun; that on April 3, 1867, the complainant notified the referee and all parties interested that he would not abide by the report John C. Offerman filed a bill in equity in 1869 of the arbitrator, but that the arbitrator, neveragainst Asa Packer, executor, and R. N. Rath-theless, proceeded in the case and awarded to the bun and Helena, his wife, averring, inter alia: That in 1841 arbitrators, appointed to settle a dispute respecting certain coal lands, known as the Phoenix Park Tract, between the complainant and the Camden and Amboy R. R. and the Delaware and Raritan Canal Companies, made an award of $13,085 to the complainant, and directed a surrender of the lands to the compaVOL. VI.-15

PER GORDON, J. A resulting trust in land can be raised only from fraud in obtaining title thereto or from the ment of purchase-money when that title is acquired. A right of action against B.'s executor arose in 1856. In 1857 A. brought suit therefor against B.'s executor. In 1867 A. and B.'s devisee entered into an agreement, under the terms of which A., in 1868, discontinued his action against B.'s executor. In 1869 A. filed a bill against B.'s executor and B.'s devisee, averring that the agreement of 1867 was void, as the act of a married woman, and praying that the agreement and the discontinuance thereunder might be set aside, and that he might be restored to any rights he had surrendered by the said agreement:

Held (AGNEW, C. J., dissenting); that the statute of limitations, which began to run in 1856, was not tolled as to either the executor or the devisee by the action of 1857.

Magaw v. Clark, 6 W. 528, followed.

Appeal from the Common Pleas No. 2, of Philadelphia County.

complainant the sum of $3195.96, which was entirely inadequate to pay the indebtedness of R. W. Packer and those claiming under him, to the complainant.

The bill therefore prayed: (1) That the agreement of 1867 might be declared null and void, and the complainant restored to whatever rights he had before entering into the same.. (2) That

the respondents might be decreed to restore to | brought suit therefor in March, 1857, in the Disthe complainant the agreement of 1845. (3) That the respondents might be decreed to account for one-half the profits and proceeds of the lands, and for whatever moneys they or R. W. Packer had received from the complainant.

By supplemental bills it appeared that the complainant's rights had vested in John W. Bickel and E. W. Offerman, the present appellants and the amendments were made accordingly.

The agreement of 1845, referred to in the bill, was as follows::

trict Court of Philadelphia County against Asa Packer, executor, and in 1858 another suit for the same cause of action, against Asa Packer individually, in which last case the plaintiff was nonsuited in 1860. That under the agreemento. 1867, in the bill referred to, the covenants then entered into were carried out and the action of 1857 discontinued on July 9, 1868. The answer suggested that whatever claim for the award of 1841 Offerman might have had against Packer's executors was barred by the statute of limitations, which had begun to run in 1856 at the time of the settlement.

PHILADELPHIA, June 17, 1845. It is agreed between John C. Offerman, of Pottsville, and Robert W. Packer, of Reading, Pa., that they jointly The cause was referred to Wm. J. McElroy, and severally agree to and endeavor to purchase the coal Esq., as Master, who reported inter alia that the lands called the Phoenix Park Tract, containing eight purchase of the Phoenix Park Tract by R. W. hundred acres, lying in Schuylkill County on the west west branch of the Schuylkill River. These lands belonging to Packer was not made in pursuance of the contract the Camden and Amboy Railroad and Delaware and of 1845, and that the settlement made many Raritan Canal Company, and it is understood that they years afterwards without knowledge on the part divide the profit accruing out of the said lands. It is also of the executor and devisee of Offerman's claim agreed that Offerman and Packer look out for a person to could not be considered as an appropriation of help make the first payment on the lands, and should we agree to renew the Offerman Railroad and Mining Com- Offerman's money; that Offerman in fact made pany, or do otherwise, and it is agreed that Offerman shall no claim for a share of the proceeds of the lands give one-fourth of his interest to the said Packer for con- till 1858, and that this claim was without equity. siderations Packer signed to the said Offerman some time As to Offerman's claim against Packer's executors hence in the award Offerman obtained by arbitrators, in for an account of the award of 1841 the Master Schuylkill County, in 1841, against the Camden and Amboy Railroad and Delaware and Raritan Canal Company. reported that the statute of limitations began to Witnesses presentrun against it in 1856, that the action of 1857 tolled the statute, and that the agreement of 1867 under which that action was discontinued was void inasmuch as it was not properly executed by Mrs. Rathbun, a married woman, and moreover because the attorney who discontinued the action, and also the arbitrator, had timely notice of Offerman's repudiation of the agreement; that the discontinuance of the action of 1857 being invalid that action still subsisted. The Master, therefore, reported that the complainant's first and second prayers should be granted, but his third prayer refused.

H. OFFERMAN,
C. BARRINGTON,

JOHN C. OFFERMAN,
R. W. PACKER.

The answer of Asa Packer set forth his discharge as executor, by the Orphans' Court of Berks County on Jan. 30, 1865, and averred that he had had no knowledge of, or connection with the estate since that time.

The answer of R. N. Rathbun and Helena Rathbun his wife, admitted the purchase of the Phoenix Park Tract by R. W. Packer, on May 30, 1846, but averred that Packer entered into the exclusive possession of the same, and so continued therein till his death, when his devisee, Helena Rathbun, entered, and that no demand was made upon her for a share of the profits till long after her acquisition of the legal title in 1856, in the bill referred to. It denied that the purchase was made in pursuance of the agreement of 1845, and averred that nothing was contributed by Offerman towards the purchase, and that the settlement in 1856, in which the award of 1841 was credited to R. W. Packer's estate, was made without the knowledge of Offerman, and without knowledge on the part of the executor that Offerman had any claim upon the award, that no demand had been made upon Packer or his executor either for the award, or for a share of the proceeds of the lands until after the settlement; that then, Offerman being indebted to Packer's estate in an amount exceeding the award, the executor refused to pay anything thereon, and Offerman

To this report exceptions were filed both by the complainants and the respondents, by the former because the Master recommended the refusal of their third prayer, and by the latter because he recommended the granting of the first and second prayers. Under the rules for the disposition of business, under the Constitution of 1874, the case fell into the Court of Common Pleas No. 2, which Court, dismissing the com plainants' and sustaining the respondents' exceptions, dismissed the bill. The complainants took this appeal, assigning the dismissal of their bill, inter alia, for error.

H. C. Titus, for the appellants.

As to the claim for the proceeds of the award of 1841: The defendants collected the award in making the settlement of 1856. The defence is the agreement of reference in 1867, and the award of the arbitrator thereunder. That agree

ment was not, and could not have been, executed | performance of this contract was demanded till by Mrs. Rathbun, and was void for want of mu- 1858. . Besides, as the Master held, this was an tuality. All the parties to a contract must be after-thought. The complainant first claimed the bound, or all are free.

therein during Packer's life, nor until some one of March, 1857, was, as he says, undoubtedly or two years after the legal estate had passed by discontinued by Mr. Seitzinger, the plaintiffs' deed to Mrs. Rathbun. Clearly no trust of any attorney, under and in pursuance of the agreekind can be raised on such a state of facts, and ment, the revocation restored the parties to their we need pursue this branch of the case no further. original status, rendered the discontinuance inThe question next to be considered arises on operative, and reinstated the suit of March, 1857; the statute of limitations as affecting the plain- and by this means Offerman's claim was kept tiffs' claim against the estate for the amount of alive and the statute tolled. Admitting the facts the proceeds of the award above stated. This to be as assumed, we nevertheless cannot admit award, amounting to the sum of $13,085.20, was the legal conclusion drawn from them. As we rendered February 11, 1841; it was assigned to have seen, the suit of March, 1857, was against Packer February 18, 1842, he at the same time Asa Packer as surviving executor; the present agreeing to collect the same, and, after deduct-action is brought against this same person, E. P. ing his own debt, pay over the balance to Offer- Wilber, administrator of Rollen N. Rathbun, and man. As we have seen, this award was settled Helena Rathbun, and the decree reported by the with the Camden and Amboy Railroad Company Master is against Packer and Helena Rathbun. by Packer's executor in 1856; we may therefore But by what process of reasoning is the action of set it down as a fact, as the auditor has done, March, 1857, made to toll the statute as to Mrs. that from this last recited date the statute com- Rathbun? It is urged, however, that though, as menced to run, and, unless tolled by suit or some to her, the statute may be operative, it may neverother act by the parties, it would operate as a theless be tolled, as to the executor, by virtue of bar some time in 1862. On the 17th of March, that suit; in other words, as to him, this bill may 1857, Offerman brought suit on this claim against be made to stand on the foot of the action of Packer's executor, in which a discontinuance was 1857. Let us examine this proposition. We entered July 8, 1868. On the 10th day of Dec. observe, in the first place, that without some ex1857, a second suit was brought, in the District trinsic support this bill must fall, for, according Court of Philadelphia County, against the same to Hamilton v. Hamilton's Exrs. (6 Har. 20), party and for the same claim, on which a non- the statute of limitations is applied with the suit was suffered April 12, 1860. Last of all this same effect in a court of equity as in a court of bill was preferred some time in 1869. In all this law. Such being the case, though a bill may there is nothing to release the grasp of the statute; have a much wider scope as to parties and the this, however, is accomplished by the learned subjects embraced by it than a suit at law, yet it auditor in the manner following: Certain suits has no greater force as to the statute. A court had been brought, in the Common Pleas of Berks of equity, having obtained jurisdiction over the County, to August Term, 1865, by Offerman parties, may settle every subject in dispute beagainst Rathbun and wife. By an agreement tween them touching the controversy, near or dated January 30, 1867, it was agreed that Offer-remote, direct or collateral, but cannot directly man should surrender for cancellation the paper or indirectly reach beyond the statute. of June 17, 1845, and release all claims and de-account is brought into this bill, which, counting mands whatsoever against the defendants and the estate of R. W. Packer, saving and excepting only that arising from the contract respecting the award against the railroad and canal companies. And it was further stipulated that the amount due the plaintiffs on this claim should be settled and adjusted by an arbiter in the agreement named and appointed. It was also provided in the instrument just mentioned that the Berks County suits should be marked settled, and the case pending in the District Court of March Term, 1857, against Asa Packer as executor of R. W. Packer's estate, should be discontinued. On the 3d of the following April, Offerman, having become dissatisfied with the agreement of the 30th of of the suit on this second writ. On demurrer, January, 1867, gave formal notice of his repudiation thereof and of his revocation of the submission. Now the Master having found that the agreement above mentioned was void, because not properly executed by Mrs. Rathbun, a feme covert, came to the conclusion that, as the suit

But an

from the date thereof, is barred by the statute. How can this apparently insuperable difficulty be overcome? The answer is, by the action of 1857; as that suit was begun within the six years, it is said, it prevents the running of the statute. No doubt this is correct so far as the claim is involved in and pursued through that suit, but it cannot impart its vigor to any other suit. This is expressly ruled in Magaw v. Clark (6 Watts, 528). In that case the original suit was against Clark & Shryock, in the year 1825, and service of summons was had on Shryock only. In 1830 an alias was issued and served on both, and the narr. and other pleadings were filed as

held, that the statute of limitations was a bar as to both defendants, notwithstanding the former suit. The decision is put upon the ground that the alias writ having been issued against both Shryock & Clark, and having been served on both, it was in fact a new suit, and not the con

ney of Bickel and Offerman, in fraud of their rights, yet, conceding the accuracy of that finding, it was, nevertheless, a fraud in which the defendants were no way involved: it was a fraud committed by the plaintiffs' own agent, and one which by no possibility can be set up against the defendants.

Treating the non pros., however, as of no effect, and this is all the plaintiffs can ask, it but follows, that a recovery may be had upon any claim set forth in the action of 1857; not older than six years, counting from the teste of the writ. That this count can be made backward from 1857, is due to the fact that that action had its origin in that year, but as it cannot communicate this date to any subsequent suit, either at law or in equity, so neither can it communicate a power which it possesses only by virtue of that date.

Decree affirmed, costs to be paid by appellants.
Opinion by GORDON, J

tinuance of the former one, hence was not effec- | to indorse the finding of the learned master, that tive to keep the former alive. It will be observed, the non pros. of 1868 was entered by the attorthat thus it was that the alias failed even as to Shryock, who had been served with the original. So also it was said, in the case of Wann v. Pattengale (2 Har. 313), that whatever difficulty might intervene in carrying forward the original suit, the institution of a new and distinct action could not be so connected with the old, as, by the use of both, to count back within the period of limitation. This, however, is exactly what is attempted in the present case under the name of equity; the effort is to engraft this bill upon the action of 1857, so as to give it a power which otherwise it would not have. It matters not that the suit was in full life when the bill was filed, for, in Magaw v. Clark, the alias was, of course, issued pending the former action; but this bill is certainly quite as much a new suit as was the second summons in that case. Nor can we see where the peculiar equity powers are which enables a bill to overstride a clear rule of law and attach itself to an action with which it is in no wise connected, except through the claim involved in it. Surely equity cannot thus overreach the statute, when, as to a statute, a bill is governed by the same rules as a suit at law. Yet, it is gravely argued, we may begin to count back, in order to reach the statutory period, not from the date of the bill, but from the date of a suit commenced some nine years before. Conceding that, if the claim were of such a character that the statute would not operate upon it, it might be settled in this suit, yet, if it were so settled, it would be wholly independent of the action in the District Court. It would be the claim itself, and not the suit, that equity would consider; so far as that suit was concerned it would be treated as though it did not exist. For what other pur-mon law equity powers, it must be conceded the pose then is that case now brought into this action than to tide this bill over the bar of the statute? Taking up the claim and counting from the date of the bill, it is found the statute has run; the plaintiffs' case is at an end; but the Master, in his desire to do what he considers justice, goes back some nine years and discovers a suit at law involving this claim; and he concludes that, as equity has large powers and powers that may be extended to the last degree, he will graft this bill upon that suit and thus forestall the statute. This cannot be; it is equity run mad.

In this we concede as of course what no one doubts, that, had the plaintiffs, by the machination or fraud of Packer's representatives, been induced to defer their claim beyond the statutory period, equity would interfere to prevent the intervention of the statute, but as there is neither proof nor allegation of any such fraud, there is no room for equitable interference on that ground. So, in like manner, whilst we are not prepared

March 28, 1878. Dissenting opinion by AGNEW, C. J. The opinion of Justice GORDON concedes the facts which put aside the compromise agreement of January 30, 1867, and the discontinuance of the action of March, 1857, rests the decision on a conclusion of law, not only inaccurate in my judgment, but which is a judicial repeal of the Act of 13 June, 1840. His point is that a bill in equity, like a second suit at law, cannot be tacked to a discontinued action to toll the bar of the statute of limitations. As thus stated the position is admitted. But if the discontinuance is taken off by the Court in which the action was brought, under its com

statute is tolled. Now this is precisely the effect of the bill before us. Previous to the Act of 1840 (1 Brightly Purd. Dig. 591, pl. 3) this could not be done. But when the Act extended the equity powers of the Courts to "all cases over which Courts of Chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account," it furnished the very jurisdiction necessary to set aside the fraudulent discontinuance, and then by virtue of its own rightful jurisdiction to proceed to a final decree upon all the matters within the circle of its powers. Such was the purpose of this bill. A brief statement of the admitted facts will exhibit this.

1

By the agreement of June 17, 1845 (Exh. B.' supra), Robert W. Packer and John C. Offerman agreed to purchase together certain lands, and that the money awarded to Offerman against the Camden and Amboy R. R. Co. and another should be used in part payment. Under this paper and payment Offerman claimed a trust in