The opinion of the court was delivered, March 10th 1873, by
Sharswood, J.It is perfectly well settled that in the administration of equity in the courts of this state through common-law forms, the judge sits as a chancellor, assisted by the jury, who are to determine the credibility of the witnesses and the effect of conflicting testimony. But the conscience of the judge as chancellor must be satisfied of the sufficiency of the evidence if believed. If it be too vague, uncertain, or doubtful, to establish the equity set up, it is his duty to withdraw it from the jury by a nonsuit or a binding instruction in his charge, as the case may require: McBarron v. Glass, 6 Casey 133; Todd v. Campbell, 8 Casey 252 ; Bennett v. Fulmer, 13 Wright 162; Miller v. Hartle, 3 P. F. Smith 111; Church v. Ruland, 14 Id. 432. But applying this principle to the evidence in this case, we think that there was quite enough to satisfy the conscience that Haas should be decreed to be a trustee for Faust. It is an undisputed fact that the property was bid off at sheriff’s sale by Mr. Graeff as attorney for Faust. The relation in which he stood to Faust was a confidential one, and he acknowledged the trust. To whom the deed was to be made was not then finally arranged, but it was afterwards distinctly agreed, Haas being a party, that if the mortgage to the Tamaqua Saving Fund Association could remain, the balance of the purchase-money should be raised and paid by Haas, under an agreement that Faust was to have three and six months to pay it back, and was also to reimburse Haas .any assessments he might subsequently have to pay on the mortgage. Mr. Graeff-testified': “ I stated to the parties at the time, that this arrangement ought to be in writing, but I had no time that day to write it, but that I would have the deed acknowledged on Monday, and bring it home with me and draw up the writing, and they were to come on the next Monday, and I was to deliver the deed to Haas.” When they came to settle at the sheriff’s office, it appeared that there was interest due on a dower right which was prior to the mortgage, and the attorney of the Saving Fund insisted that this interest should be paid before he would agree that the.mortgage should remain. In consequence of this difficulty the arrangement was *301not carried out. But anticipating no such difficulty, Mr. Graeff had directed that the sheriff’s deed should be made to Haas and acknowledged, which had accordingly been done. Haas then raised the full amount of the bid, paid it to the sheriff, and received from him the deed. This was done without the knowledge and consent of either Graeff or Faust. He then claimed, and now claims, to hold the property as his own absolutely. That this was a breach of good faith on the part of Haas cannot be doubted. It was not merely the violation of a verbal agreement. He obtained the legal title by an artifice — by getting possession of the deed without the consent of those who alone had a right to direct to whom it should be delivered, Mr. Graeff, the actual purchaser at the sheriff’s sale, and Faust, for whom he had bought. Haas, indeed, by a previous agreement with Faust, by which Faust was to secure him the payment of a judgment which he held on the premises by an assignment of all his (Faust’s) interest in his father’s estate after his mother’s death, had promised that he would not be a bidder at the sale. “ That,” says Mr. Graeff, “ was clearly the understanding.”
Under these circumstances we are of opinion that Haas was a trustee for Faust ex maleficio, not within the prohibition of the Statute of Frauds, which, having been intended to prevent fraud, is never itself to be made the instrument of one. It is certainly true, that if a man buys at sheriff’s sale, or otherwise, and pays his own money, for the purchase, no verbal agreement before or afterwards to hold for another will make him a trustee: Fox v. Heffner, 1 W. & S. 372; Jackman v. Ringland, 4 Id. 149; Barnet v. Dougherty, 8 Casey 371. But where artifice and trick are resorted to in order to procure the property at an undervalue, as for example, by deterring bidders at a sheriff’s sale, or in any other way, the rule is different. It will be sufficient to refer to Gilbert v. Hoffman, 2 Watts 66; McKennan v. Pry, 6 Id. 137 ; Brown v. Dysinger, 1 Rawle 408; Haines v. O’Conner, 10 Watts 313; Beegle v. Wentz, 5 P. F. Smith 369; Lingenfelter v. Ritchey, 8 Id. 485; Seichrist’s Appeal, 16 Id. 237. “ Although,” says Mr. Justice Agnew, in the case last cited, “ no one can be compelled to part with their own title by force of a mere verbal bargain, yet when he procures a title from another which he could not have obtained except by a confidence reposed in him,- the case is different. Then if he abuse the confidence so reposed he is converted into a trustee ex maleficio. The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud.” We think, therefore, the learned judge below erred in directing the jury that the plaintiff was entitled to recover. He should have submitted the case to them upon the whole evidence, with instructions, that if they believed that Haas obtained possession *302of the sheriff’s deed maid fide, their verdict should be for the defendant.
In the view we have taken of the case, it follows also that the evidence offered by the defendant and rejected, which form the subjects of the first and second assignments of error, was relevant, and should have been admitted, and that which was offered by the plaintiff and received, which is complained of in the third assignment, was irrelevant, and should have been rejected.
Judgment reversed, and venire faeias de novo awarded.