[Haines v. O'Conner.] for 155 dollars. Lot 98, which had shops, the carpenter work of which alone cost me 800 dollars, sold for 60 dollars. Lot 103, a stable and wareroom, sold for 51 dollars. No. 104, on which was a good two story frame house, 24 feet front, two rooms deep, sold for 150 dollars. Lot 188 for 50 dollars; another at 43 dollars; one acre at 96 dollars, and one for 68 dollars. On two of these lots was a brick house, the whole of it was sold for 1224 dollars; this was in 1822. One of these acre lots would sell now for 4 or 5000 dollars. Business was bad in Birmingham in 1823; many houses vacant; I had four vacant houses; sometimes tenants in who never paid any rent. A great many occupied without paying any rent, just to get some person to take care of the house; at that time if 40 dollars could be got a year clear, for such a house he would do well; I think none of them that had houses at that time got that; some change for the better in 1828. Know Peter Haines very well; he has told me many a time, if he had it in his power he would redeem the property; O'Conner always claimed the property to hold as his own, not for any body else. Cross-examined.-A large crowd at the sale; when Wendt and I went to take refreshments, O'Conner did not go along; when we came back, O'Conner said he bid it for himself; Wendt got angry; had harsh words; Wendt intended to buy it for himself; from the conversation, that was my impression, he intended to purchase it for himself to secure himself; I did not hear Wendt say to O'Conner that he had promised to buy it in for Haines. My property sold on a judgment of Jones; one other judgment against me; some of my property is back in my family; M'Donald got a handsome profit on it; this property worth 150 dollars per annum now. I was at the sale from the beginning to the end. I did not hear it mentioned by any body, that the property was to be bid in for Haines. Defendant's counsel requested the court to charge the jury, that admitting all the testimony in the case to be true, the jury ought not to give a verdict for plaintiff. The plaintiff's counsel requested the court to charge the jury, that if they believed the testimony of Edward Ensell, they should find for the plaintiff. Grier, president." The plaintiff in this case was formerly seised of the property in dispute. In the year 1822, like many others of his neighbours, he became entirely insolvent, and soon after all his property, real and personal, was sold by the sheriff, still leaving a large proportion of his debts unpaid. At this sheriff's sale, Dominick O'Conner became the purchaser of the property in dispute, for a sum vastly below what it had cost the plaintiff. Much of the property in the same place (Birmingham) was sold by the sheriff about the same time, and a great portion at a sacrifice even greater than that at which plaintiff's was sold. "It is in evidence, that O'Conner declared at the sale that he was [Haines v. O'Conner.] buying it for the plaintiff, and that after the sale he frequently stated, that if the plaintiff or his friends would pay him his money, interest and a judgment which he held against plaintiff, he would convey the land to the use of plaintiff and his family, but would not let a stranger have it. It is stated by one witness, who was a relative of plaintiff, that this offer was repeatedly made to him afterwards and refused; till finally in 1829, the witness again, for the first time, offering to treat with O'Conner on the subject, was told by him, that it was now too late. Three years after this O'Conner died, having devised the property to his wife, the co-defendant in this case. "In 1837, upwards of fourteen years after the purchase by O'Conner, and the property having greatly risen in value, this ejectment has been brought and a recovery is urged, on the ground that O'Conner was a trustee for plaintiff, that the rents and profits of the land have by this time reimbursed him the money he paid, and his judgment, and therefore the plaintiff should have the property. "It is said that this case is precisely similar to the case of Brown v. Dysinger, 1 Rawle 408, in which a recovery was had before the circuit court and confirmed in the supreme court. "The construction or rather misconstruction which has been too often put upon that case, has made it a dangerous precedent, and one which has caused a great deal of vexatious litigation in the country. "We all remember how much property was sacrificed at sheriff's sale through this state, some years ago. In almost every instance where the property was purchased by a neighbour, he has expressed a willingness and desire to favour the former owner and his family, and to let them have the property again on refunding the money. But in those times of difficulty, when money was so scarce, few, very few, found means or friends to assist in recovering their lost estates. In course of time, when the property has greatly risen in value, and money become more plenty, friends, or at least persons willing to join in a speculation, are found willing to advance their assistance to disinter these stale and forgotten promises, and treat them as valid trusts. And many suits have been brought on the supposition, that the case of Peebles v. Reading and Brown v. Dysinger, established the doctrine, that, if I proclaim that I hold my house for B, on terms of conveying to him when he shall reimburse me, this is not a contract for sale within the statute of frauds, but a trust which a court of chancery would execute.' "But those cases do not teach this doctrine, and if they did, it has since been overruled. Kepler v. Kepler, 2 Watts 325. "You are, therefore, instructed, that if O'Conner purchased this property with his own money, expressing an intention to let the plaintiff have it by reimbursing him his own money, if he bought it fairly at the sheriff's sale, as the highest and best bidder, and afterwards frequently declared his willingness to give it him on [Haines v. O'Conner.] these conditions, which were not accepted by the plaintiff or his friends; that the case does not present such an one as a chancellor would treat as a trust ex malaficio, but is within the statute of frauds. That the only ground on which O'Conner can be treated as a trustee, must be on account of some artifice or fraud practised by him at the sale to the injury of the plaintiff and his creditors. "An attempt to establish a title to land by parol proof, of conversations made many years ago, is one not to be favoured. Where a party relies upon a charge of fraud and artifice, he should make out a clear case. "Have you any proof to satisfy you that any fraud or contrivance was used by O'Conner to get this property below its value? Is there any evidence that his intention was generally known at the sale? or that even Wendt would have bid a dollar more than was bid for the property? Do you believe that the numerous creditors of the plaintiff, whose claims were not covered by this sale, refused to bid in order that the property might be struck off low for the use of the plaintiff and his family? All the testimony bearing on the subject, is that of one witness, who says, that O'Conner said to Wendt, "do not bid, I am bidding in for Peter." Was this, if said at all, said for the purpose of an artifice, with an intent to get the property at under price, and then refuse to let the plaintiff have it? Did he get a bargain of the property by this contrivance? "If he did so express himself to Wendt, did he not do all that an honest man and a neighbour could be expected to do for the plaintiff. Did he not refuse 1000 dollars for his bargain, immediately after the sale; and even after the plaintiff had left the premises and removed out of the state, did he not offer to his relative here to give up the property if his money was returned? "Was not the offer treated with neglect and even contempt for years? Was O'Conner, because he had expressed a benevolent feeling for his neighbour, bound to lay out of his money for years and years? Had he not a right to say, as he did at length say, 'I have waited long enough, it is now too late?' (The court then referred to the opinion of Judge Duncan in Peebles v. Reading.) "If fraud and artifice was not used by O'Conner to get a better pennyworth of this property, to the injury of the plaintiff and hist creditors, he was not a trustee, and his offers (so often repeated) to let the plaintiff have this property for his money and debt, might have been withdrawn at any time, much more after the plaintiff' had trifled with them for fourteen years, and in the meantime the property being demised to the defendant, has been accepted by her in lieu of her dower in the estate of her husband." Shaler, for plaintiff in error, cited 1 Rawle 408; 1 Dessaus. 289. Forward, for defendant in error. [Haines v. O'Conner.] The opinion of the court was delivered by ROGERS, J.-If the case of Browne v. Dysinger, 1 Rawle 408, has been understood to have ruled, "that if I proclaim that I hold my house for B, on terms of conveying to him when he shall reimburse me what I have paid, it is a trust which will be enforced;" it arises from a misapprehension of what was intended to be decided. A contrary doctrine is taught in Kepler v. Kepler, 2 Watts 327, and in the recent case of Robertson v. Robertson, 9 Watts 42. In the latter case it is ruled, that although in all cases of fraud, and where the transaction in relation to the purchase of land has been carried on mala fide, there is a resulting trust by operation of law, yet unless there is something in the transaction more than is implied from the mere violation of a parol agreement, equity will not decree the purchaser to be a trustee. A purchaser at a sheriff's sale, who has paid the money, can only be held a trustee ex malaficio, on the ground of fraud; and where he is guilty of fraud, he is a trustee for the creditors, and for the debtor also, unless the debtor be particeps criminis. But without the ingredient of fraud, as in the case of private sales, he may avail himself of the protection of the statute of frauds. There is nothing in the charge which contravenes these principles. The law is well stated, and the case has been properly left to the jury, under all the facts, with a proper direction; there is nothing, therefore, of which the plaintiff in error can complain. We must be careful to avoid unsettling titles to real estate, upon parol proof of bargains made a long time since, particularly where the property has greatly increased in value, or where it has passed into other hands. If the court should yield to such claims, it is impossible to foresee where the mischief will end, from the ease with which such testimony can be procured, tempted as they will be by the chances of receiving large estates, on proof of such agreements. If a parol contract for the conveyance of land has been violated, the party has his remedy by action, when he will recover the damages he has actually sustained. Judgment affirmed. Chew against Morton. The board of property have no power to vacate a patent once granted. A division line, although made by mistake, can not be altered after thirty years' acquiescence by the parties. ERROR to the common pleas of Beaver county. This was an action of ejectment by Benjamin Chew against Mary Morton, to recover the possession of 25 acres of land, lying in Beaver county, north and west of the rivers Ohio and Allegheny and Conewango creek, which came within the provisions of the act of the 3d of April 1792, and were to be sold and disposed of by the commonwealth upon the terms and conditions prescribed by that act. The plaintiff claimed under a warrant granted to John Nichols, dated the 4th of January 1794, for 400 acres, and a survey made, in pursuance thereof, on the 31st of January 1795, stating its contents to be 400 acres and allowance of 6 per cent. for road, &c., a deed of conveyance from John Nichols, the warrantee, to James Wilson, dated the 19th of April 1796; a deed of conveyance from James Wilson to Benjamin Chew, the plaintiff, dated the 20th of April 1795; each deed embracing the 400 acres surveyed under the warrant granted to John Nichols, of which the 25 acres claimed by the plaintiff formed a part; and a patent of confirmation from the commonwealth for the whole tract and survey, to the plaintiff and the legal representatives of John Morton, deceased, dated the 28th of November 1832. The defendant derived her claim or title to the land in dispute from the plaintiff; and accordingly gave in evidence an agreement, dated the 23d of October 1799, made in writing between the plaintiff, by his attorney John Hage, of the first part and John Morton of the second part, by which it was agreed that Morton should forthwith take possession of the tract of land surveyed as above mentioned under the warrant granted to John Nichols, and make an actual settlement and continue and complete the same according to the requirements of the act of the 3d of April 1792, on the east end of the said tract, within 200 acres part thereof, which were divided off by lines run at right angles, adjoining Braden's district line, so as to include the improvements, which Morton had previously made on the said tract: and that the said Morton, while employed in performing the covenants therein mentioned to be performed on his part, should peaceably and quietly occupy and enjoy the said 200 acres without lawful interruption or disturbance of any person whomsoever, and that the said Chew, upon the said Morton's performing his cove |