The opinion of the court was delivered, February 4th 1868, by
Ruad, J.These two appeals are from a decree in equity of the Common Pleas of Allegheny county, made by that court on a bill filed by Jane G. Swisshelm, plaintiff, against James Swiss-helm, George McCague, Jacob S. Newmeyer, John S." Davison, James S. King and Frances S. King, his wife, William Anderson and John Noss, defendants.
John Swisshelm died seised of a tract of land in Wilkins township, Allegheny county, containing 162 acres 19 perches, and allowance of 6 per cent.'; having by his will devised the same to his wife, during her life, with remainder to his four sons, James, Samuel, Henry and William, with survivorship in case either should die in the lifetime of their mother without issue. By the death of Samuel in 1840 without issue this estate became vested in his three surviving brothers upon the same conditions. Henry, by deed duly recorded, conveyed all his interest to his brother James, who thus became the owner of two-thirds of said lands, subject to his mother’s life estate in the same.
*484On the death of her mother, Mrs. Cannon, Jane G. Swisshelm became seised of certain real estate, which was sold, and was employed by her in publishing one or more newspapers, during which period her brother-in-law, William Swisshelm, was first clerk, and then a partner, and subsequently conveyed all his interest in the said land to his sister-in-law, Mrs. Swisshelm, by deed dated the 22d February 1856, and recorded on the 16th June of the same year. This was drawn and executed in the office of Mr. Shinn, the counsel of Mrs. Swisshelm, and the consideration mentioned in it is $2000.
In 1856, therefore, James Swisshelm was the owner of two-thirds of this land, and his wife Jane the owner of the other third, subject, of course, to the life estate of Mrs. Swisshelm, the widow of the testator.
On the 15th March 1856, Thomas Mellon, Esq., recovered a judgment against William Swisshelm in the District Court of Allegheny county, the real debt being $254.66, and costs. This judgment was not a lien on Mrs. Swisshelm’s one-third of the real estate.
Hugh D. King, for use of W. P. Baum, recovered a judgment against William Swisshelm, in the same court, on the 9th July 1855, for $237 and costs.
On the 5th December 1855, Kramer & Rahm entered three judgments, in the Court of Common Pleas of Allegheny county, against William Swisshelm. These four judgments were liens upon Mrs. Swisshelm’s one-third, and altogether, debt, interest and costs, amounted only to $580, the sum bid and paid by James Swisshelm to the sheriff on the 28th December 1857.
Thomas Mellon, Esq., was the counsel of James Swisshelm, and had very frequent and constant interviews with his client, and at the instance of James Swisshelm, issued execution upon his judgment against William Swisshelm, and levied upon his interest in the Swissvale property, which was condemned and advertised for sale by the sheriff, but postponed by the directions of the plaintiff. No further proceedings were had upon this judgment.
It was then determined to get the control of the Kramer & Rahm judgments, or rather of one of them, all three being transcripts from magistrate’s dockets, filed in the Common Pleas. James Swisshelm accordingly called on George S. Selden, Esq., the counsel of Kramer & Rahm, in reference to those judgments. “ The recollection called to my mind,” says Mr. Selden, “ was that Mr. Swisshelm desired to use jfche judgments of Kramer & Rahm for the purpose of divesting some interest of Mrs. Swiss-helm in some real estate.” “ My recollection is distinct about Mr. Swisshelm calling on me in relation to Kramer & Rahm’s judgments. I saw him a number of times — my recollection is *485distinct in regard to the use he desired to make of the judgment — • it is as I have stated before.”
“ I had no instructions to collect them or I should hhve issued fi. fa. to collect them.” It appears, therefore, that these judgments were put in motion by the husband of the plaintiff, and his counsel, Mr. Mellon, became the purchaser of them, and the execution on which the property was sold was marked for his use. At the sale on the 28th December 1857, Mr. Swisshelm became the purchaser for $580, the exact sum which would cover the four judgments. Mr. Mellon did not attend this last sale, nor was he present at the intended sale on his own judgment, which was stayed by his order.
“ I have no distinct recollection,” says Mr. Mellon, “ of any particular conversation with James Swisshelm in regard to the matter, he was at my office so often, and what I recollect distinctly is, his intending to become a bidder and wanting time in case he became the purchaser.” “ I gave James Swisshelm time on part of the purchase-money, and took his note for it. I don’t remember for what part of the purchase-money the note was given, but I think the note was for something over $200.”
“ James Swisshelm was there negotiating about the purchase at sheriff’s sale. My impression is that James Swisshelm had been talking to me about the sale, or about my claim against it, before I purchased the Kramer & Rahm judgments.
“ In my conversation with James Swisshelm about this title William had conveyed, it is probable that I had got the idea that it was conveyed to Mrs. Swisshelm, but I have no distinct recollection of it.” “ I had heard that the alleged conveyance of William Swisshelm was to Mrs. Jane Swisshelm.”
Can there remain a doubt that the first execution of Mr. Mellon on his judgment proceeded from his intercourse with James Swiss-helm, and that it was stayed because this judgment was found to be subsequent to the date of the conveyance of William Swiss-helm to Jane Swisshelm, which had been on record upwards of a year ? Is it not clear that at the solicitation and request of James Swisshelm, Mr. Mellon became the purchaser of the Kramer & Rahm judgments because they were prior in date to the conveyance ? ■ Of this there can be no doubt, and that the proceedings on those judgments were carried on at the instance and request of James Swisshelm, to enable him to become the purchaser at sheriff’s sale. The 6th paragraph of the answer of the defendant, James Swisshelm, is therefore distinctly disproved, for he did purchase the estate and interest of William Swisshelm at the sheriff’s sale, with a knowledge of the title of the plaintiff, and for the purpose of defeating the same, as has been shown by his whole conduct, including his defence to the present suit.
*486Mr. Shields, a former student in Mr. Mellon’s office, says: “ I did hear Mr. James Swisshelm say to me personally that they were going to sell his brother’s interest out at sheriff’s sale.” “ I saw the advertisement of the sale of William Swisshelm’s property in the papers about that time.”
It is in evidence that Mrs. Swisshelm went to Minnesota -in the spring or summer of 1857, and that a friend seeing the advertisement under the execution of Mr. Mellon, wrote to her, and she requested him to call on her counsel, Mr. Shinn, and ask him to attend to it. Mr. Shinn attended the sale, which was postponed, and found that the judgment on which the execution was issued, was subsequent to the deed, and concluded he would pay no more attention to it as' it could not affect her interest. The sale under the Kramer & Rahm judgment he did not hear of until after the sheriff’s deed was executed. His opinion was that Mr. Swisshelm held it in trust for his wife.
Taking the evidence in the most favorable point of view for the defendant, it would appear that he intended originally to strip his brother, but on discovering his wife’s title, it became necessary to strip her when she was absent, and without deigning to inform her of his intention to become the owner of her property.
James and Jane Swisshelm were part owners of the same .property, they were also husband and wife, occupying towards each other a fiduciary relation of the most confidential character, requiring the utmost degree of good faith between the parties. The husband, without notice to the wife and under the cover of another’s name, virtually possesses himself of the control and practical, ownership of three judgments of small amount, sells out his wife’s property, and for the pitiful sum of $580 becomes the owner of a very valuable interest in an improving tract of land. He is practically the vendor and the vendee, the seller and purchaser, both characters are united in him.
No court of .law or equity could ever permit so gross an abuse of the marriage relation. The only effect of the purchase by the defendant was to preserve .the estate for his wife, the plaintiff, and the court below were clearly right on this point.
Mr. Shinn had a proper appreciation of the defendant’s position as settled by the soundest principles of morality and natural justice.
The plaintiff was therefore the owner of one-third subject to the life estate of the widow of the testator, and the divorce made no other change than to free her and her estate from the control of the defendant, her husband.
The result of this decision may be thus stated: The plaintiff is entitled to one-third of the remaining real estate, to one-third of the moneys due by the bond fide purchasers without notice and to *487one-third of the moneys received by the defendant, James Swiss-helm.
And tho decree must be modified accordingly.
Decree. — These’ causes being cross-appeals of plaintiff and defendant came on to be beard at this term, and were argued by counsel, and thereupon, on consideration thereof, it is ordered, adjudged and decreed as follows, viz.: That so much of the decree of the court below as dismissed the bill against the defendants Jacob S. Newmeyer, James S. King, Frances S. King, William Anderson and John Noss be reversed, and that so far as relates to the purchase-money in their hands found by the court below, they are decreed to account for and pay one-third thereof, subject to the life estate of Mrs. Elizabeth Swisshelm, to the plaintiff, Jane GL Swisshelm, and that the defendant, James Swisshelm, is hereby decreed to account for and pay, subject to the life estate of the said Elizabeth Swisshelm, one-third of all sums of money received from the purchasers of those portions of the said tract of land named in the foregoing part of the said decree, excepting R. H. Palmer, to the plaintiff, Jane GL Swisshelm, and with this modification the decree of the court below is affirmed.
The defendant, James Swisshelm, to pay the costs of both appeals; his appeal being dismissed.
The following opinion in Ferguson’s Appeal, not reported, delivered by Mr. Justice Read, April 1st 1867, settled the construction of John Swiss-helm’s will, referred to in the above opinion:—
Read, J. — John Swisshelm, by his will, dated April 8th 1831, and duly proved the 3d December 1838, devised all his real property to his wife for life, and after her decease to his sons, James, Samuel, William and Henry Swisshelm, to be equally divided between them. In a subsequent clause he says: “And if one or more of my sons, James, Samuel, William or Henry, should die before they are entitled to receive their shares, and not leave lawful issue, the share or shares of the ones so dying shall be equally divided among the survivor or survivors of those four last-mentioned sons.”
The first clause gave the four sons a vested remainder in fee; and the effect of the second clause construing the words “ before they are entitled to receive their shares” to mean before they are entitled to receive the same in possession, which they could not do until , their mother’s death, although at law they took vested remainders after her life estate, made those vested estates in remainder defeasible on their dying without issue in the lifetime of their mother. This happened in the case of Samuel, who died in his mother’s lifetime, without leaving lawful issue. (See In re Smith’s Trusts, V. C. Wood, Weekly Notes, No. 9, p. 78, March 2d 1867.) The above clauses Certainly created no estate tail nor an executory devise, as contended for by the appellant.
The title, therefore, would be a good one, except that Jane G-. Swisshelm, *488wife of James Swisshelm, by deed of the said William Swisshelm, dated February 22d 1856, and duly recorded, became the owner of all the interest of said William under the will of his father, John Swisshelm. Upon prior judgments William’s interest was sold by regular process of law, on the 28th December 1857, to James Swisshelm, the husband of Jane G. Swisshelm. The appellant claims that the purchase of William’s interest by Jane was with the knowledge and consent of her husband, and that the husband’s subsequent purchase at sheriff’s sale was for the benefit of her title. It is true they have since been divorced, but this she disputes, and insists her title is still subsisting.
Now, the rights of Jane, the wife, are not before the court. She is not a party to this suit, and no decree made here would bind her, and nothing is better settled than that upon a bill for specific performance, which is addressed to the discretion of the chancellor, the vendor must make out not only a holding but a marketable title, one as to which there is no reasonable doubt either as to matter of law or fact: Dalzell v. Crawford, 1 Parsons 45; Alkinson on Titles, 3 Law Library; Speakman v. Forepaugh, 8 Wright 371. A purchaser will not be compelled to take a title which will expose him to a lawsuit, unless the adverse claimant should have no such reasonable chance of establishing his claim as would render the title unmarketable. As Mrs. Swiss-helm is not now before the court, we cannot say that her claim is so utterly without foundation. This makes it unnecessary to consider the regularity of the decree in her divorce case.
The record in this case as printed is very defective; but we presume upon, the demurrer being overruled an answer was filed and replication and a decree in favor of the plaintiffs, none of which are furnished to us.
As no final decree can be made without making Mrs. Swisshelm a party,
The decree is reversed, with instructions to the court below to permit the plaintiffs to make her a party.