LANCASTER LAW REVIEW. 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 10th 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, Good v. Fehl. title and interest in all damages sued for and all moneys to be recovered in a certain suit, wherein Andrew H. Hershey et al., were plaintiffs and H. S. Ker Oral agreement to reconvey land to baugh was defendant, entered in the grantor-Defeasance-Trust. Equity will not compel a defendant to reconvey to the plaintiff certain real estate previously conveyed by the plaintiff to the defendant, and to pay over a balance in money, under an alleged oral agreement by the defendant to reconvey the land and pay over half of the amount to be recovered in a pending action for damages to the property, less one thousand dollars advanced to the plaintiff at the time of the agreement. Such agreement amounts to a parol defeasance and, since the passage of the Act of June 8, 1881, a deed can be impeached and reduced to a mortgage only by the execution of a written defeasance. A grantee in such deed can not be declared in equity a trustee ex maleficio where no fraud is charged. Demurrer to bill in equity. C. P. of Lancaster County. Equity Docket, No. 6, page 39. John M. Groff, for plaintiff. John E. Malone, for defendant. January 9, 1915. Opinion by LANDIS, P. J. On October 21, 1914, the plaintiff filed her bill in equity against the defendant, in which she alleged the following causes of complaint, to wit: FIRST. That she is a resident of Havre-de-Grace, Maryland. That on and prior to June 22, 1912, she was the owner in fee of a one-half interest in certain islands in Lancaster County, Pennsylvania, in the Susquehanna River, near Safe Harbor. That on said date, she, for the consideration of One Dollar, with her husband, executed a deed for said Islands to one J. W. Fehl. (Exhibit A attached.) Court of Common Pleas of Lancaster County, to No. 34, September Term, 1905, all of which interest in said suit, was on June 27th, 1912, assigned to J. W. Fehl. (Exhibit B attached.) FOURTH. That afterwards, to wit: on the 13th day of October, A. D. 1913, a jury on the trial of the above case, entered in the Court of Common Pleas to September Term, 1905, No. 34, assessed the damages in said case at Five Thousand Dollars and rendered a verdict for that amount, which was afterwards paid to the said J. W. Fehl or his attorneys. That the said J. W. Fehl paid counsel fees out of said fund, amounting to Seventeen Hundred and Fifty Dollars, leaving in his hands Thirty-two Hundred and Fifty Dollars. FIFTH. That at and before the time of delivering aforesaid deed to defendant, and at and before the time when plaintiff transferred her interest in aforesaid suit to defendant, defendant and plaintiff entered into a verbal agreement, as follows: said Fehl was to advance plaintiff One Thousand Dollars ($1,000.00), and was to receive as trustee for plaintiff the deed to the islands and a transfer of plaintiff's interest in said suit. That after said suit was ended and the damages recovered, defendant was to take therefrom the One Thousand Dollars ($1,000.00) advanced, interest on the same at the legal rate, and was then to re-convey to plaintiff, the islands and pay over to the plaintiff the difference between one-half of the damages recovered and the said One Thousand Dollars and interest thereon. That under the said agreement, the amount due plaintiff is Five Hundred and Sev SECOND. That plaintiff's title to said islands was purchased from A. H. Her-enty Dollars. SIXTH. That frequent demands have been made on defendant by plaintiff to pay over said money and to re-convey said islands, but defendant always has and does now refuse to pay said sum to and re-convey said islands to the plaintiff. Wherefore, your orator prays your Honorable Court: I. That said defendant be decreed to account and pay over to your orator one-half of all moneys received from H. S. Kerbaugh (Inc.), in a suit brought in the Court of Common Pleas of Lancaster County, to September Term, 1905, No. 34, after deducting the attorney fees and other costs of collection and One Thousand Dollars ($1,000.00), with interest from June 22, 1912, until the 1st day of June A. D. 1914, when defendant received said money. 2. That the defendant be decreed to convey to your orator all those islands located in Lancaster County, in the Susquehanna River, which plaintiff by her deed dated June 22, 1912, and recorded July 10, 1912, in Deed Book E, Volume 21, at page 9, conveyed to defendant. 3. And further, that your orator may have such further and other relief in the premises as to your Honorable Court shall seem meet. On November 3, 1914, the defendant filed a demurrer, which is based upon the following grounds, namely: 1. That, upon the face of said bill, plaintiff is not entitled to the relief claimed. 2. That this Court has no jurisdiction of the said bill, as the same is a mère ejectment bill. 3. The allegations in said bill merely set forth a breach on the part of the defendant of a parol contract to hold or convey land, which is not sufficient to create a trust ex maleficio. 4. For any and all the matters of complaint alleged in plaintiff's bill, she has an adequate remedy at law. The cause now comes before us for hearing on the demurrer to the bill, and the sole question raised is, whether, under the facts presented in the bill, it is sustainable. OPINION. The facts of the bill are, ་ by the demurrer, conceded to be true. It thereby appears that the plaintiff is a resident of Havre-de-Grace, Maryland, and, on June 22, 1912, she became the owner, in fee, of a one-half interest in certain islands, located in the Susquehanna River, near Safe Harbor, in this county. Andrew H. Hershey and C. H. Nolt then conveyed this interest to her, and she, with her husband, immediately conveyed the same to the defendant. At that time, she was also the owner of a one-half interest in certain damages claimed in a suit of Andrew H. Hershey et al., against H. S. Kerbaugh, brought in the Court of Common Pleas of Lancaster County, to September Term, 1905, No. 34. Her interest in these damages was, on June 27, 1912, assigned to the defendant. The said suit against Kerbaugh was afterwards tried in this Court, and a verdict was rendered in favor of the plaintiffs for $5,000.00. This amount the defendant afterwards paid. Out of the moneys thus received, Fehl paid his counsel fees, to the amount of $1,750.00, and there has remained in his hands the sum of $3.250.00. At and before the time the said deed was made and delivered by her to Fehl, and at and before the time the transfer of said damages was made by her to him, it was agreed between them that Fehl should advance to her the sum of $1,000.00, and should receive the deed and transfer as trustee for the plaintiff. However, after the suit was ended and the damages were paid, he was to take there from the $1,000.00 so advanced, with interest, and was then to reconvey to the plaintiff the said interest in said islands, and also pay over to her the difference between the one-half of the damages recovered and the $1,000.00 and interest. The amount of this difference is $570.00. The plaintiff averred that, although she had made frequent demands of the defendant for said reconveyance and for the payment over to her of said moneys, he has refused to carry out the agreement, and a decree, ordering him so to do, is now sought for at the hands of the Court. It seems to be a correct statement of the law that, if the claim which is made against the defendant was solely for the balance of the damages alleged to be | due on the parol promise, this bill in equity would not then lie, because, under such circumstances, the plaintiff would have an adequate remedy at law to recover the same in an action for money had and received. If, however, a trust ex maleficio was created by the parol promise, and covered a reconveyance of the land as well as the payment of the money, and the two were one and the same transaction, if such a trust is here maintainable, the claim for the money ought to be considered as part of the undertaking, and equity having taken hold, can determine the whole of the controversy. Has, then, the plaintiff, under the facts presented, a right to maintain this bill? The plaintiff rests her case on the ground that the defendant is a trustee ex maleficio. In support of this position, her counsel presses the case of Danzei- | sen's Appeal, 73 Pa., 65, and cases of a kindred character. There, the plaintiff, being embarrassed, upon defendant's advice, conveyed to him real estate, on defendant's parol promise that he would obtain from a building association, on the security of the real estate, a loan, with which he would pay the plaintiff's liabilities, repay the loan from the rents, and reconvey the same to the plaintiff when the loan should be repaid. The Supreme Court held that the transaction was a mortgage, and ordered a reconveyance. Likewise, in Gaines v. Brockerhoff, 136 Pa., 175, it was held that an agreement, between a debtor and a creditor, that the latter would acquire title to the lands of the debtor by means of a sheriff's sale, and would hold them, with the right of the debtor to redeem, made the transaction a mortgage. See, also, Squires's Appeal, 70 Pa., 266. These cases were, however, all decided before the passage of the Act of June 8, 1881, P. L., 84, and to a case like this we do not think they are any longer applicable. That Act provided: "That no That no defeasance to any deed for real estate, regular and absolute upon its face, made after the passage of this Act, shall have the effect of reducing it to a mortgage. unless the said defeasance is made at the time the deed is made and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and is recorded in the office for the recording of deeds and mortgages in the county wherein the said lands are situated, within sixty days from the execution thereof. . . . Following this Act, it was decided, in McDonald v. Sturtevant, 195 Pa., 648, that a bill in equity for a reconveyance of land on the ground that a deed absolutely conveying the land to the defendant was, in fact, a mortgage, cannot be sustained, where there is no satisfactory evidence that any written defeasance was made. The plaintiff here claimed that the deeds were made to secure $300.00 loaned by the defendant, and that, at the same time, a writing was executed, in which it was stipulated that the debtor should have five years' time to redeem the land. The Court below refused to find that any such defeasance was given, and dismissed the plaintiff's bill, which action, on appeal, was affirmed by the Supreme Court. In Grove v. Kase, 195 Pa., 325, it was decided that "evidence that a deed absolute upon its face was really upon a trust that the grantee should apply the royalties from the land conveyed to the repayment of the grantor's debts to her for money then due, and for such as she might thereafter pay as surety, involves a parol defeasance, which the Act of June 8, 1881, makes ineffectual to reduce a deed absolute to a mortgage." In Lohrer v. Russell, 207 Pa., 105, it was held that even a written defeasance, signed by the grantor, but unacknowledged and unrecorded, though contemporaneous with the execution and delivery of a deed absolute on its face, could not be admitted to convert such deed into a mortgage. In Banes v. Morgan, 204 Pa., 185, in an equitable ejectment, it appeared that the plaintiffs formerly owned the land in controversy, but that it had been sold in foreclosure proceedings on a mortgage. One Ritchey purchased the land at the sheriff's sale, and gave them an option to repurchase within. thirty days. Within that time, Paul and his sister paid Ritchey $3,000.00, and Paul took the deed in his own name. . only result from some act of bad faith, and a mere refusal to perform a parol contract to hold or convey land is not sufficient to create such a trust; in Davis v. Davis, 216 Pa., 228, that "a trust cannot be taken out of the prohibition of the statute as a trust ex maleficio which, under the most favorable view for the claimant, shows nothing more than a bare parol trust;" and in Grove v. Kase, supra, on a bill in equity to enforce an alleged trust ex maleficio arising from a breach of confidence, on the faith of which a conveyance was made, where the defendant in the answer explicitly denies the charges of fraud, and the force of this denial is not overcome by the requisite, clear, precise, and indubitable evidence, the Supreme Court will not reverse a decree dismissing the bill based on a finding that there was no fraud at all on the part of the defendant, and that an alleged parol agreement to treat the conveyance as security only, was not proved." In O'Donnell v. Vandersaal, 213 Pa., 551, Mr. Justice Brown, delivering the opinion of the Court, after quoting from Sankey v. Hawley, 118 Pa., 30, said: Paul promised to reconvey the land to the plaintiffs, if the amount of the advance was repaid within three years, but he refused to put this agreement in writing. He subsequently died, having devised the land to his sister. In proceedings in Paul's Estate, in the Orphans' Court, a decree was entered, authorizing Paul's executor to convey the land to the plaintiffs upon the payment of the redemption money, but this decree was subsequently revoked. Miss Paul conveyed the land to Morgan, the defendant. It was held: First, that Paul's agreement, being in parol, was a mere parol mortgage which could not be enforced; second, that Paul's refusal to put the alleged agreement in writing was, in the absence of any other facts, insufficient to establish a trust ex maleficio. In Eberly's Administratrix Spatz, 21 Lanc. Law Review, 259, where the grantee of real estate raised the purchase money by an endorsed note, and, to secure his endorser, immediately conveyed the property to him, subject to an agreement that it should be reconveyed to said grantee on his payment of the said note, which he failed to do, it was 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 vance a 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 when they should refund the amount advanced with interest and costs, it was held that such a paper was a defeasance; but, if it was not recorded within sixty days from its date, as provided by the Act of 1881, it could not be admitted to convert the deed into a mortgage. In Braun v. First German Evangelical Lutheran Church, 198 Pa., 152, it was decided that "a trust cx maleficio can Reverting, then, to the bill filed by the plaintiff, we find that it contains no allegation of fraud. It follows, therefore, from the above quoted authorities. that, in its absence, the defendant cannot be declared a trustee ex maleficio. As upon this ground the plaintiff bases her case, there seems to be nothing left but to dismiss the bill. At most, what is contained therein is a parol promise that the defendant shall hold the land, repay himself the money he had advanced, with interest, and reconvey the land and pay over the balance to the plaintiff. This seems to us to be clearly within the provisions of the Act of June 8, 1881, and, if we are correct in this position, the demurrer must be sustained. The demurrer is now sustained, and the bill is dismissed at the costs of the plaintiff, without prejudice to proceed at law with the claim for money had and received. Superior Court. Commonwealth v. Evans. Summary conviction -Appeal-Failure to report communicable disease-Costs -Acts of June 18, 1895, April 22, 1903, and May 14, 1909. An action against a physician for failure to report a communicable disease under the Act of May 14, 1909, P. L., 855, need not be brought within sixty days. This Act is complete in itself and not an amendment of the Act of June 18, 1895, P. L., 205, which as amended by the Act of April 22, 1903, P. L., 244, provides the sixty-day limitation and the sections of which not specifically repealed by the Act of 1909 are still in force. While the Act of 1909 is silent as to costs they may nevertheless be imposed on conviction as the conviction of any defendant renders him liable for costs, whether the offense is indictable or subject to summary conviction. Under the Act of April 17, 1876, P. L., 29, the court has control over the costs in summary conviction. A case arising from a summary conviction comes before the Superior Court on appeal as if on certiorari and the court is therefore not concerned as to the testimony but is limited to inquiry as to the regularity of the proceedings. Appeal No. 289 of October Term, 1914, by Dr. E. E. Evans, defendant, from judgment of Q. S. of Lancaster Co., on appeal from summary conviction dismissing the appeal. Suit was brought against the defendant under the Act of May 14, 1909, for failure to report a case of diphtheria. See 31 Law Review, 401. The Court below entered the following judgment: The appeal in this case is dismissed and the proceedings of the Alderman are now confirmed. Appeal dismissed. Chas. I. Landis, P. J.” (1) The Court below overruled the following reasons in the petition for the appeal to the Court below from the judgment of the magistrate, to wit: "1. The conviction was unjust in this; 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 and put in the hands of other physicians, and Dr. Dwight Martin having notified the Board of Health of the ailment of the child in accordance with the provisions of the Act of Assembly, the same was sufficient notice to the State authorities and it was not necessary for Dr. Evans or Dr. Roebuck or any other attending physician to give notice, as the commonwealth had received all the notice necessary, or that was to be had on the (3) case. "3. The claim was barred by the act of limitations." (4) 66 4. Under Section 21 of the Act of June 18, 1895, page 203, etc., as amended by the Act of April 22, 1903, P. L., 244, the suit for the recovery of the fine or violation of the Act aforesaid must be commenced within sixty days from the commission of the offense and not afterwards, and the Act of May 14, 1909, under which the present suit was brought, cited portions of the Act of June 18, 1895, for repeal, but did not repeal Sections 12, 20 and 21 of the said Act of June 18, 1895, Section 21, as amended by the Act of 1903, providing the limitation for the commencement of the said prosecution. That the said limitation Act is in force, and, as the suit in hand was commenced more than sixty days, to wit, about 73 days after the time. of the offense laid in the complaint, it is barred by the statute of limitations and was improperly brought and the Alder |