Kraft v. Smith

Citations

• 117 Pa. 183
• 11 A. 370
• 1887 Pa. LEXIS 250

Syllabus

<p>1. When one buys real estate at sheriff’s sale under a verbal agreement with the debtor, as whose property it is sold, to hold it in trust for him with a right in the latter to redeem, the transaction is not a mortgage and does not give to the debtor the rights of a mortgagor.</p> <p>2. The fraud which will convert the purchaser of land at a sheriff’s sale into a trustee ex maleficio of the debtor, must have been fraud existing at the time of the sale, by which the title was procured.</p> <p>3. In an ejectment, where it is sought to recover on the ground that the defendant, having purchased the land at sheriff’s sale, is -a trustee ex maleficio for the plaintiff as whose property the land was sold, unless the evidence of the facts from which the fraud is to be found be clear, explicit and unequivocal, the court should instruct the jury to find for the defendant.</p> <p>4. Barnet v. Dougherty, 32 Pa. 371; Kellum v. Smith, 33 Pa. 158, and Kistler’s App., 73 Pa. 393, followed.</p>