lever was used to throw the belt off the driving pulley to a loose pulley. When once so thrown off and the lever held until the belt had properly adjusted itself overhead to the pulley which supplied the power the machine could not start until the belt was thrown back again upon the driving pulley. Upon the occasion referred to, the plaintiff had stopped his machine and while engaged in removing the spool of wire the machine started and he was caught in the cogs and injured as before described. Was the machine defective in its original construction, or had it become so by reason of use or other cause?

There was certainly no evidence as to the first proposition. It was claimed, however, that the machine was defective and unsafe at the time the injury occurred. The learned counsel for the plaintiff have collected in their printed argument upon page 19, of their paper book, the testimony upon which they rely and which they urge should have been submitted to the jury. I quote from the paper book:

"Thomas Reese (page 10) says the machine did not seem to work properly. On cross-examination (page 12) he says: "I thought it run a little too fast, and I did not like to work on that machine the way it run." The witness upon his cross-examination further said, in reply to the question: "Well, what was the matter with the machine?" "Well, what was wrong with it when I was there as far as my knowledge runs was, she did not work right; didn't barb right; didn't give satisfaction." The witness also said the defect he referred to had nothing to do with the stopping or starting of the machine. It was not even alleged that the failure of the machine to barb the wire properly had any connection with the accident. This testimony does not touch the case.

The next witness relied upon by plaintiff is Benjamin Fulton. I quote again from page 19: "Benjamin Fulton, page 13, says: I stopped running the machine; it was not in fit condition to work at that time; I told Rials and Bradtz it was not safe, and that I would not bother with it; we called it the hospital machine." The learned counsel have not cited what, in my view, is the strongest part of the testimony of this witness. I will supply the omission:

"Q. Now, just state why it was unsafe? A. Well, the machine would start of its own accord after it was stopped; when I was working it the belt was not properly fit up.'

Just what the witness intended by the remark that "the belt was not properly fit up" does not clearly appear. His subsequent cross-examination throws some light upon it. I give a portion of it:

"Q. Then five (machines) were run with straight belts, and five with crossed belts? A. Yes, sir. Q. Was there any liability to start without you starting them? A. There was if the pulleys were too loose; sometimes if you would shove it off too quick it would twist, and, if you did not watch it carefully, it would fly right back on the fast pulley again. Q. If you didn't push it over far enough, and hold it there for a little bit, until the belt had adjusted itself on the pulley above, it was liable to fly over on the fast pulley, and start the machine? A. Yes, sir, it would do that; some machines would do that. Q. Was there any more liability for one machine to start than there was for another, if it was

handled properly? A. No, sir. Q. In any one of those machines, if they were handled with prudence, there was no danger of any one meeting with an accident? A. No, sir."

There is not a word here to show that the machine was out of order. If it was handled with prudence, there was no danger. If the belt was not properly thrown off, and held off a sufficient time, it would fly back and start the machine. This appears to have been the case with all the machines, especially those run with cross belts. If the belt had become too loose, whose business was it to know that fact? All leather belts will stretch with use, and the person operating the machine is, of all others, the one to know that fact, and to remedy the defect, or call upon his employer to do so.

The next witness was George Soupper; I quote again from page 19: "George Soupper, page 16, says: It would work sometimes, and sometimes it would not work; it was not as regular as the other machines; it was run by a crossed belt; if it was not handled with a good deal of care, it would throw it in a twist, and if he would shove it over too quick it would fly back on the tight pulley again, and start the machine." The witness is not speaking of any defect in the machine, or its construction. He is referring to the mode of handling it. This is clear from his cross-examination, a small portion of which I give:

"Q. Then to give it a sudden jerk in letting your lever go, of course the tendency of the belt would then be to go right back again? A. Yes, it would; if you would throw it over rapidly it would take it right over on the tight pulley again. Q. That is what caused the starting, is it not? A. Yes, sir. Q. Then it would not have started if it were properly adjusted? A. No, sir. Q. Then it was just like any other machine that was operated in that building, in regard to starting and stopping; the belt had to be adjusted on the loose pulley before you would let go of your lever? A. Yes, sir."

I quote again from the argument: "L. Ross, page 19, says there was a wire attachment to tighten the lever, and in his opinion it was there to fasten the lever back so it would not start." We are not informed, by testimony or otherwise, that this wire attachment was out of order, or that it rendered the machine unsafe. So far as we can form an opinion, it would have seemed to have been placed there from motives of safety. It has not been shown to have contributed to the accident.

I quote again from the argument: "The plaintiff testifies that he was careful and had stopped the machine and waited some time before he reached to remove the spool of barbed wire. The defendants allege that the plaintiff put his foot upon the platform on which the machine stood. This the plaintiff denied, and showed the jury in what manner he had placed his foot." The only portion of this paragraph that needs comment is that portion which refers to the plaintiff's testimony. He does state that he was careful and had stopped the machine. I have no doubt the plaintiff thought he was careful and had stopped the machine long enough for the belt to adjust itself. That he was mistaken is shown not by the result merely, but by the testimony of his own witnesses, which I have cited above.

VOL. III.-50

This was all of the evidence relied upon by the plaintiff as entitling him to go to the jury, excepting the declarations of Rials, the superin⚫tendent, made after the accident. We are not disposed to rule this case upon them. His declarations were clearly incompetent to affect any one but himself, and if objected to must have been ruled out. Besides, they are fairly offset by the plaintiff's own declaration, made at the same time, that " perhaps it was a little carelessness on my part." It is possible that a jury would find the negligence were the case submitted to them.

This is the greater reason why we should not direct the submission in the absence of sufficient evidence. The plaintiff has met with a serious calamity which enlists our warmest sympathies, but we would be doing a wrong were we to place the burden of making compensation for that calamity upon shoulders that are not entitled to bear it. Judgment affirmed.

DILTS v. STEWART.

November 2, 1885.

TRUSTS-ACT OF APRIL 22, 1856-VERBAL DECLARATION OF TRUST RELATING TO LAND-RESULTING TRUSTS— TRUSTEE EX MALEFICIO.

Declarations of trust relating to land are void, under the act of April 22, 1856 —P. L. 533 — unless in writing.

The

A. made a deed for certain land to his son-in-law, B., but previous to signing. the deed A. declared repeatedly to various people that he gave the land to his daughter, Mrs. B.; that it was for her and not for B. The latter also said to A, that he knew the land was for Mrs. B., and it should be hers. At the time of signing the deed A. reiterated that the land was for Mrs. B. The consideration as recited in the deed was natural love and affection for B. and for Mrs. B. land was claimed by Mrs. B. and generally known in the neighborhood as hers being so spoken of by B. In an action by a purchaser of the land at a sheriff's sale thereof under a judgment against B., held, that the purchaser took a good title. The declarations of A. and B. as to the land being for Mrs. B., did not, under the act of 1856, establish a trust in favor of Mrs. B. which could be enforced.

The fact that B. paid nothing for the land, and that natural love and affection for Mrs. B. was no doubt the real consideration, was not sufficient, of itself, to establish a resulting trust in her favor.

Nor was the evidence sufficient to show that B. induced A. to make the deed to him by promising to hold the land in trust for Mrs. B., or to convey to her; so as to render B. a trustee ex maleficio.

Error to the court of common pleas of Indiana county. Ejectment, by A. M. Stewart against Peter Dilts and Mary Dilts, for one hundred and forty acres of land in North Mahoning township.

Stewart claimed the land as purchaser at a sheriff's sale of the same in 1876, made in pursuance of a judgment against Peter Dilts. The defendants claimed that the land belonged to Mary Dilts, having been given her by her father, John Ewing. The latter was owner of about five hundred acres of land, which he concluded to divide among his children in 1862. The deed for Mary's part was not made until 1868. The defendant's evidence was to the effect that Ewing was then living with Peter Dilts; that the latter employed one Clark to make several deeds for him, and said to Clark in reference to the land in question: "There is a piece of land my father-in-law gave to my wife." The

deed was made out, John Ewing and wife of the first part and Peter Dilts of the second part, "for and in consideration of the sum of $1 (and also the love and natural affection which they have for the said Peter Dilts, their son in law, and Mary Dilts, wife of said Peter Dilts, daughter of said John and Lettice Ewing)." Defendants' witnesses testified that Peter Dilts took the deeds home and showed them to his father-in-law, and when the latter came to this deed he said: "Peter, I will give that to Polly (meaning Mary Dilts); I want Polly to have that." Peter said, "I knew you did, it is Polly's and it shall be Polly's." Ewing told a Mr. Warren, "that Peter had brought the deed there, and that he was going to make it to Polly; said he would make it to Peter in trust for Polly; that was the way he wanted the title written." Thos. Ewing, a witness to the deed, said: "When father went to sign the deed he says, 'It is Polly, not Peter, I am going to give this to. William Crawford testified in reference to a conversation with Ewing, that "when he first signed the deed, he said it was not what he intended. to do; he allowed this for Polly; he allowed to make the deed for Polly; he did not like to sign the deed in this way; and Peter said to him he allowed it for Polly and it would make little difference, or something to that amount. Peter got a little irritated and said if he did not get it in his name he did not want it at all, and went out of the house."

Peter Dilts was not present when the deed was executed, and there was no evidence that at the time of the delivery of the deed there was any thing said by either grantor or grantee. The defendants contended at the trial, that the facts set out in their testimony and the further facts, that Mrs. Dilts had taken possession of the land and notoriously claimed it; that Peter Dilts had never paid any thing for it, and that the natural love and affection which Ewing bore for his daughter was the real consideration for the deed, showed conclusively that Peter Dilts held the legal title simply as trustee for his wife, and that his failure to execute a deed for it to her made him a trustee ex maleficio.

The court, however, charged that the evidence did not establish any trust in favor of Mrs. Dilts, and directed the jury to find a verdict for the plaintiff. Verdict and judgment accordingly, whereupon the defendants took this writ assigning the refusal of the court to submit the case to the jury, for error.

Harry White & H. W. Weir, for plaintiffs in error. A. W. Taylor and J. N. Banks, for defendant in error.

TRUNKEY, J. When John Ewing divided his land in 1862, he intended to give a part to each of his children. Mary Dilts took such possession of the land intended for her as under usual circumstances a married woman is capable of taking-claimed it; her husband occupied it as he did his own and called it hers; but neither put valuable improvements thereon before the sheriff's sale. Peter Dilts had his attorney write the deed, then took it to his father-in-law, John Ewing, who, after examination, said: "I give this to Polly; I want Polly to have it;" and Dilts replied: "I knew you did; it is Polly's and it

shall be Polly's." They had little other conversation about it, and Dilts thought Ewing did not like the way the deed was written.

William Crawford testifies that he had a conversation with John Ewing respecting the deed. "When he first signed the deed," he said, "it was not what he intended to do; he allowed this for Polly; he allowed to make the deed for Polly; he did not like to sign the deed in this way he said, and Peter said to him he allowed it for Polly and it would make little difference, or something to that amount. Peter got a little irritated and said if he did not get it in his name he did not want it at all, and went out of the house." "Peter said he intended it for Polly."

That conversation was before the deed was executed. Thomas H. Ewing, one of the subscribing witnesses, testifies that when his father "went to sign the deed he says it is Polly not Peter I am giving this to." The consideration for the deed was natural love and affection. Peter Dilts was not present when the deed was signed and acknowl edged; nor is there testimony that at the time of delivery of the deed any thing was said by either grantor or grantee.

If the ruling of the learned judge of the common pleas needs vinacation none better can be made than noting the testimony and reading the fourth section of the act of April 22, 1856, which requires all declarations or creations of trust to be manifested by writing, signed by the party holding the title thereof. Ewing had intended to convey the land in controversy to Mary Dilts. Peter Dilts wanted it conveyed to himself; had the deed so prepared; gave it to Ewing; did not talk much; made no promises; and after "quite a while" Ewing executed and delivered the deed. There can be no resulting trust arising from the payment of purchase-money where none is paid. Natural love and affection is a good consideration for a deed, and when that is the consideration, such fact would be considered with others, if there were others, tending to establish a resulting trust, but alone it is insufficient. The grantor knew that Peter Dilts wanted the title to himself. Had Dilts persuaded and induced his father-in-law to make the deed to him by a promise to hold it in trust for his wife and to convey or devise it to her there would be some cause for holding him a trustee ex maleficio. Then, indeed, the doctrine in Church v. Ruland, 64 Penn. St. 434, might apply. There the devisee promised the testator that if he would give her the land in fee, on her death one-half of it should go to the children of her sister Charlotte. The will was so made on the faith of her promise, and good faith on her part required performance. It was very different from the declaration of the grantor in the absence of the grantee, when the grantee had previously merely said: "The land is Polly's; it shall be Polly's; I intend it for Polly, too," and added that "if he did not get it in his own name he did not want it at all." The expression of an intention is not a promise. Insisting that a deed shall be made to himself involves no deceit by the grantee.

There is nothing in this case to defeat the title of the purchaser at sheriff's sale.

Judgment affirmed.