The opinion of the court was delivered, May 17th 1873, by
Mercur, J.The plaintiff claims to recover this land under title acquired at a sheriff’s sale, when it was sold as the property of the estate of Merrick Housler, deceased. The defendant, who is the widow of Housler, made defence to a portion of land called “ The Homestead,” containing about eighteen acres. Prior to, and at the time of, the sheriff’s sale, the defendant and her minor children were in the actual possession of the whole property. She had entered into a contract to purchase it from Aden Housler, who held a deed for it subject to the payment of the judgments. While thus holding whatever interest passed to her under this contract, as well as her right of dower, she made the arrangement with Simpson, under which he purchased at sheriff’s sale.
The evidence given by the defendants, which the jury found to be true, was substantially this, to wit: Prior to the sheriff’s sale the defendant had agreed with Aden Housler to bid off the whole land, provided it was not run up higher than $1200 or $1250, which was the value of the property, and if he became the purchaser he was to deed “ The Homestead ” to her. Upon the day next preceding the sale Simpson, who was the plaintiff in the execution, was informed of this arrangement between Aden Housler and the defendant. He then said to them if they would not interfere or bid at the sale, and have it bid off as low as possible, that she should have the homestead; she should not get any bidders, and he would get some one to bid it off; that would be better than for her to bid it off. The defendant and Aden agreed to this proposition. Relying upon it they did not interfere nor bid at the *458sale; nor did she get any other person to bid for her. Simpson bid it off for $110. The plaintiff bought of him with full knowledge of this arrangement.
Under these facts the court below held that a trust ex maleficio arose in favor of the defendant as to the homestead.
All the errors assigned are substantially to this conclusion.
Where a parol contract for the purchase of land has been carried on malá fide, there is a resulting trust implied by law, and equity will decree a conveyance according to the terms of the contract: McCulloch v. Cowher, 5 W. & S. 427. Equity will not permit one to hold a benefit which he has derived through the fraud even of another, and much less will it do so if he has acquired if by means of his own fraud: Sheriff v. Neal, 6 Watts 540. In Morey v. Herrick, 6 Harris 128, Justice Bell said, “ It is equally well settled that if one be induced to confide in the promise of another, that he will hold in trust, or that he will so purchase for one or both, and is thus led to do what otherwise he would have forborne, or to forbear what he contemplated to do, in the acquisition of an estate, whereby the promissor becomes the holder of the legal title; an attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex maleficio.” Where one holding an article of agreement for one hundred and sixteen acres of land, upon which he had paid five dollars only, and was liable to be turned off, surrendered his title under a parol contract that ten acres thereof should be conveyed to him so soon as the person for whose benefit he gave up his title acquired a deed for the legal title, it was held to create a trust ex maleficio in his favor as to the ten acres: Plumer & Crary v. Reed, 2 Wright 46. Nor does it make any difference that the title was acquired by Simpson through a judicial sale : Beegle v. Wentz, 5 P. F. Smith 369, and cases there cited. The case of Beegle v. Wentz was one in which a debtor was induced to relinquish his claim to the $300 exemption, and consented that the whole of his land be sold, under an agreement that the plaintiff was to take a sheriff’s deed for the same and make to the debtor a deed for the part agreed upon. It was held that if the debtor was induced to surrender his right on the false assurance that the part should be left to him, the plaintiff refusing, was a trustee ex maleficio. This was since the Act of April 22d 1856, and was held to be such a trust or confidence as was not affected by that act. The same principle is affirmed in Seichrist’s Appeal, 16 P. F. Smith 237.
It is contended, however, that inasmuch as the agreement between the defendant and Simpson was that she and her agent and friends should not bid at the sale, it was contrary to public policy, and therefore void. In support of this principle the case of Slingluff v. Eckel, 12 Harris 472, is cited. We assent to the *459correctness of the law there declared, as applied to the facts in that case. That was an agreement between two persons, neither of whom had any possession of or interest in the land. The court there said: “ What we do decree is, that one bidder cannot legally buy off another with money, or the promise of money.”
The distinction in this case is, that the defendant had an interest in the land in reference to which the contract was made, and she was to retain a portion of that land. This is a distinction clearly taken and recognised in Beagle v. Wentz, and in Seichrist’s Appeal, supra.
Judgment affirmed.