McDonald v. McAndrew

Citations

• 40 Pa. Super. 146
• 1909 Pa. Super. LEXIS 582

Syllabus

<p>Ejectment — Equitable ejectment — Trust ex maleficio — Evidence.</p> <p>1. An equitable action of ejectment to enforce a trust of real estate ex maleficio is in reality a substitute for a bill in equity, and is governed by the rules of evidence applicable to a chancery suit. If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the jury either by a nonsuit, or a binding direction in his charge as the case may require. The burden is upon the plaintiff in such a case to prove her equitable right by evidence that is clear, precise, convincing and indubitable.</p> <p>2. A promise, declaration or misrepresentation which will create a trust ex maleficio must be made before or at the time the legal title is acquired by the promisor; for nothing subsequently said by the grantee will turn an estate that had passed absolutely from the grantor into a trust for others.</p> <p>3. In an equitable ejectment plaintiff claimed that her grandmother had executed a deed for a house and lot and a vacant lot, to an aunt, on the express agreement and promise of the aunt to the grantor to convey the vacant lot to the plaintiff. One witness who was present when the deed was made, testified positively to the making of the promise as to the conveyance of the vacant lot. This witness was corroborated to some extent by admitted or undisputed circumstances. Two witnesses for the plaintiff testified to direct admissions of the defendant made at different times while she was the legal owner of the land, not merely of her intention to deed the land to the plaintiff, nor merely in the nature of promises to do so, but that she had promised the grantor at the time the deed was made that she would deed the vacant lot to the plaintiff. Held, that the evidence was sufficient to sustain a verdict for plaintiff for the vacant lot.</p>