Reiff v. Horst

Bowie, J., delivered the opinion of the Court. The appellants, as trustees, for the creditors of Abraham Horst, sued the appellee in assumpsit, for money payable by the defendant to the plaintiffs. The only item of the. hill of particulars, in dispute, on this appeal, is the sum of one thousand dollars, claimed as balance due on farm sold by Abraham Horst, to the appellee. Ho question arises on the pleadings.

At the trial, the appellant offered five prayers, three of which, the first, second and fifth, were rejected. The appellee offered four, all of which were granted, to which action of the Court below, the plaintiffs excepted. The appellee, the defendant below, was the son of Abraham Horst, who was the son-in-law of Peter Eshleman. The appellants proved, that the appellee, in the year 1875, purchased of his father, A. Horst, a farm for $8600, all of which was paid, except $1000, “ which was left standing in the farm.” The appellants further proved, that afterwards, on the 10th of July, 1876, Abraham Horst conveyed to the appellants, for the benefit of his creditors, all of his property of every description, including bonds, notes, dioses in action, and accounts of A. Horst, with power to sue for and recover the same.

The appellee proved, by A. Horst, that he had offered to sell the farm to the defendant for $8600, to which defendant at first objected; hut afterwards said he would take the farm at that price, provided witness would let the $1000 stand, which defendant said was his portion of the moneys his grandfather had placed in witness’ hands; witness said he would do that, and the defendant agreed to buy the farm on those conditions ; and a few days thereafter, the deed for the farm was executed by the witness to the defiendan! ²⁶⁵ It was further proved hy the same witness, that the defendant paid the purchase money, hy cancelling certain notes of the witness, and assuming debts, etc., which, together with the $1000, which witness agreed to pay him from his grandfather’s moneys, and which was considered as a part payment of the purchase money for the farm, amounted to the whole purchase money expressed in said deed. The witness further said, that $1000 of _ this purchase money, was not paid to him in money for the following reasons: “That in 1845, the witness, being the son-in-law of Peter Eshleman, the said Eshleman gave him the sum of $400; and afterwards in 1856, the said Eshleman gave him $2000 more, and at the same time, he told Abraham (the witness) that he gave him this $2000, on the following terms and conditions, viz., that he should hold the sum of $2000, and also the sum of $400 given eleven years before, for the benefit of the grandchildren of the said Eshleman, to he paid to them, with interest;” that on these terms and conditions, the witness took the money and used it in his business; that in 1858, his wife died ; in March, 1875, being the owner of the farm mentioned in the deed, he sold it to his son for $8600, and as a part payment thereon treated $1000 of the purchase money, as due the defendant as his part of the two sums above mentioned, with interest, etc., that there were five children for whose benefit the money was held in trust; and witness and defendant concluded that $1000 was about the fair share of the defendant, and therefore, that sum was allowed him. Other testimon3r was offered, on cross-examination of Abraham Horst, and the defendant, tending to show the alleged trust as to the funds received hy the father, had never been recognized or executed by him as to his other children, and that the objects and terms of the trust were variant from those stated hy the witness A. Horst. ²⁶⁶ The propositions contained in the appellants’ prayers which were rejected, concisely stated, are 1st. That if the jury believe that Eshleman, the father-in-law of Abraham Horst, gave his son-in-law four hundred dollars in 1845, absolutely as a gift, and that eleven years afterwards, Horst received the sum of $2000, not as a loan, but as a -fund to be held in trust by him for his children ; and then for the first time it was agreed and understood, that the $400 previously given, should also be treated and held as in trust, the same as the $2000, then the jury are instructed that these facts are sufficient to create a trust in the said $400. 2nd.

If the jury find that Abraham Horst received $2000 as a fund to be held for the benefit of his wife during her life, and after her death to be divided among her children, and that after his wife died and not before; the fund was held in trust for her children; and the money was to be equally divided between them, they (the jury) will ascertain each child’s share, with interest from their mother’s death to the date of the deed; and if they find a sum greater than a child’s share was left in the farm, bought by defendant of A. Horst, they will find for the plaintiffs for such difference. 3rd. That there was no evidence sufficient to establish a trust as to the sums of $400 and $2000 respectively between Abraham Horst and Samuel Horst, and A. Horst was not a trustee for those sums, and if they find the farm was sold by the former to the latter for $8600, which was not paid in full, and that A. Horst afterwards made to the plaintiffs the deed of the 10th of July, 1816, the plaintiffs are entitled to recover whatever portion of the purchase money remains unpaid. The first and third propositions, which are the substance of the appellants’ first and fifth prayers, are founded upon the theory that the evidence is not sufficient to establish a