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LANCASTER LAW REVIEW. I shey and C. H. Nolt, by deed dated 22d

day of June, 1912, and recorded in

Record Book E, Volume 21, at page 8, Vol. XXXII.) FRIDAY, MAY 28, 1915. [No. 30 on the roth day of July, A. D. 1912.

THIRD. That at the time said deed

was delivered to defendant by plaintiff, Common Pleas--Equity. She was the owner of a one-half right,

title and interest in all damages sued for

and all moneys to be recovered in a cerGood v. Fehl.

tain suit, wherein Andrew H. Hershey

et al., were plaintiffs and H. S. KerOral agreement to reconvey land to baugh was defendant, entered in the grantor-Defeasance-Trust.

Court of Common Pleas of Lancaster Equity will not compel a defendant to re

County, to No. 34, September Term, convey to the plaintiff certain real estate pre- 1905, all of which interest in said suit, viously conveyed by the plaintiff to the de- was on June 27th, 1912, assigned to J. fendant, and to pay over a balance in money, W. Fehl. (Exhibit B attached.) under an alleged oral agreement by the defendant to reconvey the land and pay over

FOURTH. That afterwards, to wit: on half of the amount to be recovered in a pend- the 13th day of October, A. D. 1913, a ing action for damages to the property, less jury on the trial of the above case, enone thousand dollars advanced to the plain-tered in the Court of Common Pleas tò tiff at the time of the agreement. Such agreement amounts to

a parol de- September Term, 1905, No. 34, assessed feasance and, since the passage of the Act of the damages in said case at Five ThouJune 8, 1881, a deed can be impeached and re- sand Dollars and rendered a verdict for duced to a mortgage only by the execution of

that amount, which was afterwards paid a written defeasance.

to the said J. W. Fehl or his attorneys. A grantee in such deed can not be declared in equity a trustee ex maleficio where no fraud That the said J. W. Fehl paid counsel is charged.

fees out of said fund, amounting to Demurrer to bill in equity. C. P. of Seventeen Hundred and Fifty Dollars, Lancaster County. Equity Docket, No. leaving in his hands Thirty-two Hun

dred and Fifty Dollars. 6, page 39.

FIFTH. That at and before the time John M. Groff, for plaintiff.

of delivering aforesaid deed to defend

ant, and at and before the time when John E. Malone, for defendant.

plaintiff transferred her interest in aforeJanuary 9, 1915. Opinion by Lindis, said suit to defendant, defendant and

plaintiff entered into a verbal agree

ment, as follows: said Fehl was to adOn October 21, 1914, the plaintiff filed vance plaintiff One Thousand Dollars her bill in equity against the defendant, ($1,000.00), and was to receive as trusin which she alleged the following tee for plaintiff the deed to the islands causes of complaint, to wit:

and a transfer of plaintiff's interest in FIRST. That she is a resident of said suit. That after said suit was ended Havre-de-Grace, Maryland. That on and and the damages recovered, defendant prior to June 22, 1912, she was the owner was to take therefrom the One Thouin fee of a one-half interest in certain sand Dollars ($1,000.00) advanced, inislands in Lancaster County, Pennsyl- terest on the same at the legal rate, and vania, in the Susquehanna River, near was then to re-convey to plaintiff, the Safe Harbor. That on said date, she, islands and pay over to the plaintiff the for the consideration of One Dollar, difference between one-half of the damwith her husband, executed a deed for ages recovered and the said One Thousaid Islands to one J. W. Fehl. (Ex- sand Dollars and interest thereon. That hibit A attached.)

under the said agreement, the amount SECOND. That plaintiff's title to said due plaintiff is Five Hundred and Sevislands was purchased from A. H. Her-enty Dollars.

P. J.

Sixth. That frequent demands have ' by the demurrer, conceded to be true. It been made on defendant by plaintiff to thereby appears that the plaintiff is a pay over said money and to re-convey resident of Havre-de-Grace, Maryland, said islands, but defendant always has and, on June 22, 1912, she became the and does now refuse to pay said sum to owner, in fee, of a one-half interest in and re-convey said islands to the plain- certain islands, located in the Susquetiff.

hanna River, near Safe Harbor, in this Wherefore, your orator prays your county. Andrew H. Hershey and C. H. Honorable Court:

Nolt then conveyed this interest to her, 1. That said defendant be decreed to and she, with her husband, immediately account and pay over to your orator conveyed the same to the defendant. At one-half of all moneys received from that time, she was also the owner of a H. S. Kerbaugh (Inc.), in a suit brought one-half interest in certain damages in the Court of Common Pleas of Lan- claimed in a suit of Andrew H. Hershey caster County, to September Term, 1905, et al., against H. S. Kerbaugh, brought No. 34, after deducting the attorney fees in the Court of Common Pleas of Lanand other costs of collection and One caster County, to September Term, 1905, Thousand Dollars ($1,000.00), with in- No. 34. Her interest in these damages terest from June 22, 1912, until the ist was, on June 27, 1912, assigned to the day of June A. D. 1914, when defendant defendant. The said suit against kerreceived said money.

baugh was afterwards tried in this Court, 2. That the defendant be decreed to and a verdict was rendered in favor of convey to your orator all those islands the plaintiffs for $5,000.00. This amount located in Lancaster County, in the Sus- the defendant afterwards paid. Out of quehanna River, which plaintiff by her the moneys thus received, Fehl paid his deed dated June 22, 1912, and recorded counsel fees, to the amount of $1.750.00, July 10, 1912, in Deed Book E, Volume and there has remained in his hands the 21, at page 9, conveyed to defendant. sum of $3,250.00. . At and before the

3. And further, that your orator may time the said deed was made and delivhave such further and other relief in the ered by her to Fehl, and at and before premises as to your Honorable Court the time the transfer of said damages shall seem meet.

was made by her to him, it was agreed On November 3, 1914, the defendant between them that Fehl should advance filed a demurrer, which is based upon the to her the sum of $1,000.00, and should following grounds, namely:

receive the deed and transfer as trustee 1. That, upon the face of said bill. for the plaintiff. However, after the plaintiff is not entitled to the relief suit was ended and the damages were claimed.

paid, he was to take therefrom the 2. That this Court has no jurisdiction $1,000.00 so advanced, with interest, and of the said bill, as the same is a mere was then to reconvey to the plaintiff the ejectment bill.

said interest in said islands, and also pay 3. The allegations in said bill merely over to her the difference between the set forth a breach on the part of the de- one-half of the damages recovered and fendant of a parol contract to hold or the $1,000.00 and interest. The amount convey land, which is not sufficient to of this difference is $570.00. The plaincreate a trust ex maleficio.

tiff averred that, although she had made 4. For any and all the matters of com- frequent demands of the defendant for plaint alleged in plaintiff's bill, she has said reconveyance and for the payment an adequate remedy at law.

over to her of said moneys, he has reThe cause now comes before us for fused to carry out the agreement, and a hearing on the demurrer to the bill, and decree, ordering him so to do, is now the sole question raised is, whether, un- sought for at the hands of the Court. der the facts presented in the bill, it is It seems to be a correct statement of sustainable.

the law that, if the claim which is made OPINION.—The facts of the bill are, ' against the defendant was solely for the balance of the damages alleged to be time the deed is made and is in writing, due on the parol promise, this bill in signed, sealed, acknowledged and delivequity would not then lie, because, under ered by the grantee in the deed to the such circumstances, the plaintiff would grantor, and is recorded in the office for have an adequate remedy at law to re- the recording of deeds and mortgages in cover the same in an action for money the county wherein the said lands are had and received. If, however, a trust situated, within sixty days from the exeer maleficio was created by the parol cution thereof. . . Following this promise, and covered a reconveyance of Act, it was decided, in McDonald v. the land as well as the payment of the Sturtevant, 195 Pa., 648, that a bill in money, and the two were one and the equity for a reconveyance of land on the same transaction, if such a trust is here ground that a deed absolutely conveying maintainable, the claim for the money the land to the defendant was, in fact, ought to be considered as part of the un- a mortgage, cannot be sustained, where dertaking, and equity having taken hold, there is no satisfactory evidence that any can determine the whole of the contro-written defeasance was made. The plainversy. Has, then, the plaintiff, under tiff here claimed that the deeds were the facts presented, a right to maintain made to secure $300.00 loaned by the dethis bill?

fendant, and that, at the same time, a The plaintiff rests 'her case on the writing was executed, in which it was ground that the defendant is a trustee stipulated that the debtor should have ex maleficio. In support of this position, five years' time to redeem the land. The her counsel presses the case of Danzei- | Court below refused to find that any sen's Appeal, 73 Pa., 65, and cases of a such defeasance was given, and dismissed kindred character. There, the plaintiff, the plaintiff's bill, which action, on apbeing embarrassed, upon defendant's ad- peal, was affirmed by the Supreme Court. vice, conveyed to him real estate, on de- In Grove v. Kase, 195 Pa., 325, it was fendant's parol promise that he would decided that “evidence that a deed abobtain from a building association, on solute upon its face was really upon a the security of the real estate, a loan, trust that the grantee should apply the with which he would pay the plaintiff's royalties from the land conveyed to the liabilities, repay the loan from the rents, repayment of the grantor's debts to her and reconvey the same to the plaintiff for money then due, and for such as she when the loan should be repaid. The might thereafter pay as surety, involves Supreme Court held that the transaction a parol defeasance, which the Act of was a mortgage, and ordered a reconvey- June 8, 1881, makes ineffectual to re

Likewise, in Gaines v. Brocker- duce a deed absolute to a mortgage." In hoff, 136 Pa., 175, it was held that an Lohrer v. Russell, 207 Pa., 105, it was agreement, between a debtor and a cred-held that even a written defeasance, itor, that the latter would acquire title signed by the grantor, but unacknowlto the lands of the debtor by means of a edged and unrecorded, though contemsheriff's sale, and would hold them, with poraneous with the execution and delivthe right of the debtor to redeem, made ery of a deed absolute on its face, could the transaction a mortgage. See, also, not be admitted to convert such deed Squires's Appeal, 70 Pa., 266. These into a mortgage. In Banes v. Morgan, cases were, however, all decided before 204 Pa., 185, in an equitable ejectment, the passage of the Act of June 8, 1881, it appeared that the plaintiffs formerly P. L., 84, and to a case like this we do owned the land in controversy, but that not think they are any longer appli- ! it had been sold in foreclosure proceedcable. That Act provided : “ That no ings on a mortgage. One Ritchey purdefeasance to any deed for real estate, chased the land at the sheriff's sale, and regular and absolute upon its face, made gave them an option to repurchase within after the passage of this Act, shall have thirty days. Within that time, Paul and the effect of reducing it to a mortgage, his sister paid Ritchey $3,000.00, and unless the said defeasance is made at the Paul took the deed in his own name. Paul promised to reconvey the land to only result from some act of bad faith, the plaintiffs, if the amount of the ad- and a mere refusal to perform a parol vance was repaid within three years, but contract to hold or convey land is not he refused to put this agreement in writ

ance.

sufficient to create such a trust;" in ing. He subsequently died, having de- Davis v. Davis, 216 Pa., 228, that "a vised the land to his sister. In proceed- trust cannot be taken out of the prohibiings in Paul's Estate, in the Orphans' tion of the statute as a trust ex maleCourt, a decree was entered, authorizing ficio which, under the most favorable Paul's executor to convey the land to view for the claimant, show's nothing the plaintiffs upon the payment of the more than a bare parol trust;" and in redemption money, but this decree was Grove v. Kase, supra, on a bill in equity subsequently revoked. Miss Paul con- to enforce an alleged trust ex maleficio veyed the land to Morgan, the defend- arising from a breach of confidence, on ant. It was held: First, that Paul's the faith of which a conveyance was agreement, being in parol, was a mere made, where the defendant in the anparol mortgage which could not be en- swer explicitly denies the charges of forced; second, that Paul's refusal to fraud, and the force of this denial is put the alleged agreement in writing not overcome by the requisite, clear, prewas, in the absence of any other facts, cise, and indubitable evidence, “the Suinsufficient to establish a trust ex male- preme Court will not reverse a decree ficio. In Eberly's Administratrix v. dismissing the bill based on a finding Spatz, 21 Lanc. Law Review, 259, where that there was no fraud at all on the part the grantee of real estate raised the pur- of the defendant, and that an alleged chase money by an endorsed note, and, parol agreement to treat the conveyance to secure his endorser, immediately con- as security only, was not proved." In veyed the property to him, subject to an O'Donnell 2. Vandersaal, 213 Pa., 551, agreement that it should be reconveyed Mr. Justice Brown, delivering the opinto said grantee on his payment of the ion of the Court, after quoting from said note, which he failed to do, it was Sankey 7. Hawley, 118 Pa., 30, said: held that a subsequent judgment cred- “ Every attempt since made to evade the itor could not secure title to said prop- Act has been thwarted by a repetition of erty by buying it in at a sheriff's sale; these words, and by this time it ought to that the Act of June 8, 1881, prevented be fully understood that a deed can be the agreement to reconvey, which was impeached and reduced to a mortgage not recorded, from converting the sec- only by the execution of a written deond conveyance into a mortgage. In feasance bearing even date with the Safe Deposit & Title Guaranty Company deed, signed, sealed, acknowledged, deof Kittanning v. Linton, 213 Pa., 105, livered and recorded.” It was also dewhere a grantee in a deed absolute on cided in that case that a grantee in such its face executed subsequently to the a deed cannot be declared in equity a deed a paper in which he agreed to pay trustee ex maleficio, where no fraud is a mortgage with interest then due, to ad- charged. In Goodwin v. McMinn, 204

sum stated, and to pay the Pa., 162, the bill was dismissed because taxes on the land, and thereafter to re- the proof did not show fraud. convey the property to the grantors Reverting, then, to the bill filed by when they should refund the amount ad- | the plaintiff, we find that it contains no vanced with interest and costs, it was | allegation of fraud. It follows, thereheld that such a paper was a defeasance; i fore, from the above quoted authorities. but, if it was not recorded within sixty that, in its absence, the defendant candays from its date, as provided by the not be declared a trustee ex maleficio. Act of 1881, it could not be admitted to As upon this ground the plaintiff bases convert the deed into a mortgage. her case, there seems to be nothing left

In Braun v. First German Evangelical but to dismiss the bill. At most, what is Lutheran Church, 198 Pa., 152, it was contained therein is a parol promise that decided that “a trust cx maleficio can the defendant shall hold the land, repay

vance

a

Superior Court.

himself the money he had advanced, The Court below entered the following with interest, and reconvey the land and judgment : pay over the balance to the plaintiff. The appeal in this case is dismissed This seems to us to be clearly within the and the proceedings of the Alderman provisions of the Act of June 8, 1881, are now confirmed. Appeal dismissed. and, if we are correct in this position, Chas. I. Landis, P. J.” (1) the demurrer must be sustained.

The Court below overruled the folThe demurrer is now sustained, and lowing reasons in the petition for the the bill is dismissed at the costs of the appeal to the Court below from the judgplaintiff, without prejudice to proceed at ment of the magistrate, to wit: law with the claim for money had and

1. The conviction was unjust in this; received.

your petitioner diagnosed the case to the best of his ability and saw no symptoms of diphtheria, and, therefore, up to the time he ceased attending the child, there was nothing to justify him in furnishing a notice stating that Alberta Kauffman was suffering from diphtheria." (2)

2. The case having been taken over Commonwealth v. Evans.

and put in the hands of other physicians,

and Dr. Dwight Martin having notified Summary conviction --Appeal-Failure the Board of Health of the ailment of

to report communicable disease-Costs the child in accordance with the provi-Acts of June 18, 1895, April 22, sions of the Act of Assembly, the same 1903, and May 14, 1909.

was sufficient notice to the State authori

ties and it was not necessary for Dr. An action against a physician for failure to report a communicable disease under the Act

Evans or Dr. Roebuck or any other atof May 14, 1909, P. L., 855, need not be tending physician to give notice, as the brought within sixty days. This Act is com- commonwealth had received all the notice plete in itself and not an amendment of the necessary, or that was to be had on the amended by the 'Act of April 22, 1903, P. L., case.” (3) 244, provides the sixty-day limitation and the 3. The claim was barred by the act sections of which not specifically repealed by of limitations." (4) the Act of 1909 are still in force.

“ 4. Under Section 21 of the Act of While the Act of 1909 is silent as to costs they may nevertheless be imposed on convic- June 18, 1895, page 203, etc., as amendtion as the conviction of any defendant ren- ed by the Act of April 22, 1903, P. L., ders him liable for costs

, whether the offense 244, the suit for the recovery of the fine is indictable or subject to summary conviction. or violation of the Act aforesaid must

Under the Act of April 17, 1876, P. L., 29, the court has control over the costs in sum

be commenced within sixty days from mary conviction.

the commission of the offense and not A case arising from a summary conviction afterwards, and the Act of Vay 14, 1909, comes before the Superior Court on appeal

under which the present suit as if on certiorari and the court is therefore not concerned as to the testimony but is lim- brought, cited portions of the Act of ited to inquiry as to the regularity of the pro- June 18, 1895, for repeal, but did not ceedings.

repeal Sections 12, 20 and 21 of the said

Act Appeal No. 289 of October Term, amended by the Act of 1903, providing

of June 18, 1895, Section 21, as 1914, by Dr. E. E. Evans, defendant, the limitation for the commencement of from judgment of Q. S. of Lancaster the said prosecution. That the said limiCo., on appeal from summary conviction tation Act is in force, and, as the suit dismissing the appeal.

in hand was commenced more than sixty Suit was brought against the defend-days, to wit, about 73 days after the time ant under the Act of May 14, 1909, for of the offense laid in the complaint, it is failure to report a case of diphtheria. barred by the statute of limitations and See 31 Law Review, 401.

was improperly brought and the Alder

was

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