Wolf v. Corby

BkeNT, J., delivered the opinion of the Court. The bill of complaint in this case alleges that a deed by which the appellants, George Wolf and Mary C. Wolf,, his wife, in 1842 conveyed, in fee simple, to John Corby and William Corby, the real estate mentioned therein, and which descended to the husband as one of the heirs-at-law >of Jacob Wolf, deceased, was intended by the parties as a mortgage, and that the property, after the payment and satisfaction of the debts secured by it, should be conveyed by the grantees to Mary C. Wolf, for the benefit of herself and children. It charges that the debts have been paid from the profits and proceeds of the property, states the death of John and William Corby, one of whom died in 1853, and the other in 1861, and asks for a decree annulling and vacating the deed, and directing the appellees, the heirs-at-law of the grantees, to convey the property to Mary C. Wolf, one of the appellants. The answers of the defendants deny the material allegations in the bill, and the complainants are thereby put upon proof of all that is essential to make out and support their claim to the relief which they ask.

If a trust is set up, the denial by the pleadings of the agreement upon which it is. based, is sufficient to hold the party setting it up to such proof of it as will satisfy the requirements of the Statute of Frauds, although the statute may not be insisted upon in the answer. Ontario JSanJc vs. Root, 3 Paige’s Ch. Rep., 481; Jones vs. Slubey, 5 H. & J., 372; Small vs. Owings, 1 Md. Ch. Dec., 363.

The Statute of Limitations is relied upon in the answers as one of the defence® to this bill, and was strongly urged in the argument on the part of the appellees. We do not consider it important to examine its application to this case, as our decision will rest upon grounds totally distinct from any want of equities on the part of the appellants, because of the alleged staleness of their demand from the long period of time between the execution of the deed and the filing of the bill of complaint. ³⁶¹ Assuming that all the evidence offered by the appellants is admissible, it does not establish a mortgáge between the parties. According to the terms of the agreement testified to by the witness, Keppler, the property was not to return to the grantors