Opinion,
Mr. Justice Mitchell:That there were some conversations between the parties in regard to the impending sheriff’s sale is unquestionable, but that -they amounted to an agreement, the subsequent breach of which, even fortified by the prevention of Houseman from bidding, would constitute a trust ex maleficio, is by no means clear. By plaintiff’s own version, the terms were extremely indefinite; and, as the final conversation was in the presence of counsel for both parties, the inference is very strong that it was the failure to agree on some essential point that induced Mr. Cowan to lay down his pen again after having taken it up, as plaintiff says, to put the matter in writing. But plaintiff’s version, indefinite as it is, is denied positively by defendant; and, if the weight of the testimony at the trial is with plaintiff, the conduct of the parties, on the other hand, is clearly more consistent with the account given by the defendant. Taken as a whole, the case is very similar to, and in some respects not so strong as Kimmel v. Smith, 117 Pa. 183, and falls short of the measure of proof required in such actions.
There is also another ground fatal to plaintiff’s recovery. If he ever had a right of action, he lost it by inexcusable delay. The sale took place in May, 1879, and this suit was not brought until 1887. Plaintiff, by his own testimony and his wife’s, had notice within four or five weeks from the sale that defendant refused to abide by the alleged agreement. Why did he wait to bring suit, for eight years, and until the witnesses who could have made the whole matter absolutely clear, Cowan and Hazlett, the counsel in whose presence he says the agreement was made, were both dead? The learned judge below, *641though explaining very fully and accurately to the jury the general principles of law, passed this point over with the brief and peremptory direction that the action had been brought within a period not prohibited by law. This instruction was^ based apparently upon the so-called tender in September, 1884, as the starting-point of the statutory period. But to this there are two conclusive objections. First, it was too late. The plaintiff, as already noted, was informed, not later than June, 1879, that the agreement on which his rights depended was repudiated by defendant, and with this knowledge he let the five years the statute gave him go by before he made any further move. But, secondly, passing over the technical objections to the so-called tender, and treating it as at least a valid demand, it is perfectly clear upon its face that it was not plaintiff’s first notice that defendant would claim the property as his own, nor even an effort to find out whether he would still persist in such claim, already made in June, 1879. The whole arrangement, getting the lawyer from Pittsburgh, with Heilbrunner and his cheek in the back-ground, the formal character of the demand, and the ready acquiescence, without argument or persuasion, in defendant’s refusal, indicates that it was an attempt to retrieve ground already lost, and was intended for the formal opening of the contest the plaintiff knew was necessary for the assertion of his claim. Even for this purpose it was too late -, and yet he waited three years more before issuing his writ. The act of 1856 was passed to put an end to just such controversies. As said by the present Chief Justice in Christy v. Sill, 95 Pa. 380, 384, “ there must be some point of time when a purchaser of real estate at a judicial sale shall not have his title cut up by the roots by mere parol eviidence of what took place at such sale, or by a secret trust, disentombed after the lapse of years, and set up by the uncertain recollection of witnesses as to remote transactions. The act of 1856 was intended to prevent titles being disturbed in this manner.” The defendant’s second point, though not expressed with precision and complicated with irrelevant matters, was intended to claim the benefit of the act of 1856, and was so treated by the learned judge. So understood, both it and the seventh point should have been affirmed.
Judgment reversed.