Opinion by
Mr. Justice Mestrezat,In his opinion refusing a new trial the learned court below has stated fully the uncontroverted facts and has correctly given the facts deducible from the oral and written testimony. They need not be restated here at length.
The plaintiff in the court below claimed the right to recover the undivided one fourth of the land described in the writ for either or both of two reasons: 1. Because she was a cotenant of the defendant in the property notwithstanding the deed of William Thaw conveying to the defendant the title absolutely, and (2) because the defendant had acquired the title to the premises, including her interest therein, by virtue of a trust, the denial of which converted him into a trustee ex maleficio, thereby bringing her claim within the proviso of the 4th section of the act of April 22, 1856, which excludes it from the operation of the 6th section of that act. The plaintiff urges here the same reasons in support of her appeal.
The court below ruled against the appellant on both positions for the reasons sot forth at length in his opinion denying the motion for a new trial. We think the learned judge committed no error in denying the right of the plaintiff to recover on either or both of the two grounds stated.
At the death of Robert Watson, in April, 1888, he was seized *244of the ten acres in. dispute, and the five sixths of the residue of the whole tract. The title to the other sixth was in Charles J. Watson. At that time the Thaw mortgage, which was subsequently reduced to a judgment of $115,807.67, covered the entire tract. By the death of Robert Watson the title to the ten acres and the five sixths of the residue of the tract became vest.ed in his heirs, viz: three brothers, one sister, a nephew and a niece. They were then tenants in common with Charles J. Watson who owned the one sixth of the tract except ten acres, the title to which was in all the heirs. In this condition of the title Mr. Thaw foreclosed his mortgage and purchased the property and received a sheriff’s deed, July 21, 1888. Before the sheriff’s sale, however, to wit: June 30, 1888, all the heirs of Robert Watson excepting his brother Samuel, but including the plaintiff’s husband, presented Mr. Thaw with a paper containing the following request: “ In case said lands are purchased at sheriff’s sale by you, that the same may be conveyed by you absolutely to Samuel Watson, upon his securing to be paid, in such manner as shall be satisfactory to you, the debt now due to you, and secured upon said lands or interests therein,” etc. Mr. Thaw conveyed the premises to Samuel Watson by deed dated August 25, 1888, and took from him a bond and mortgage for $130,000. The plaintiff contends that notwithstanding the title thus acquired, the defendant was a cotenant of the other heirs of Robert Watson, including her husband, in the property conveyed to him by Thaw, and that Samuel Watson’s title was subject to the interests of his former cotenants. The counsel for the plaintiff cites in support of his position Tanney v. Tanney, 159 Pa. 277, and some kindred cases, in which it is held, inter alia, that where several persons have a joint or common interest in an estate, one of them may not purchase an incumbrance or outstanding title and set it up against the rest for the purpose of depriving them of their interests. The reason of the rule is as stated by Dean, J., in delivering the opinion “ because it must be presumed that each as regards the common interest acts for all.” In that action which was brought in 1891, Lewis Tanney, the defendant, being a tenant in common with his brother and sisters, the plaintiffs, and having charge of the common property, permitted it to be sold on a tax lien in 1881, and had another purchase it for him without *245the knowledge or consent of his cotenants. It was held that Lewis could not hold the property against the plaintiffs. In delivering the opinion, Dean, J., says: “ The sale resulted from the joint default of all the tenants in common; it was the duty of all to share equally in the payment of taxes, but Lewis had immediate charge of the common property, for he procured the power of attorney for Leslie, and to him Leslie accounted for the rents up to the date of the sheriff’s sale; when he purchased with his own money the purchase inured to the common benefit ; that is, it discharged the lien for taxes, but their interests were not divested by the sale unless they ratified it.” It was also held that the statute of limitations of April 22,1856, under the facts of record, would not avail the defendant. On this point the opinion says, inter alia: “ These plaintiffs are not seeking to enforce an implied or resulting trust; they are demanding possession of the undivided three fourths of their land from which defendant wrongfully keeps them. . . . They claim no benefit from his sheriff’s deed, and aver that it cannot affect their rights when they elect to avoid it. In this they are correct. ... It is not a resulting trust. An implied or resulting trust is where land is purchased in the name of one person and the money paid by another; .... or where a conveyance has been obtained by fraud.”
The facts of the case in hand do not bring it within the rule laid down in Tanney v. Tanney. If Samuel Watson had purchased the property without the knowledge of his cotenants while he had it in his charge and possession, the two cases would be more similar in their facts. But here bad faith or a lack of performance of duty towards his cotenants cannot be attributed to Samuel on such a state of facts, as they do not exist. On the contrary, he took an absolute title to the premises with the knowledge and acquiescence and at the request of his co-tenants, and with every opportunity to them to protect their interests. It should be conceded, as it cannot be denied, that Samuel Watson’s cotenants were as familiar as he with the property, the indebtedness, and the necessity for its payment, and all the circumstances concerning the transaction. No concealment or fraud in acquiring the title on the part of Samuel Watson could have occurred, nor is such alleged. There is no allegation that Samuel’s cotenants or either of them would have taken the *246land and paid the indebtedness, nor that he by any artifice or fraudulent device prevented them from doing so. With a full knowledge of all the facts necessary to protect their interests in the property, Samuel Watson’s cotenants directed the lands to be conveyed to him absolutely on the condition that he pay the indebtedness against them. This was an approval of and full authority to the grantor to make the sale and conveyance of the land to Samuel Watson, and when in pursuance of this authority the sale was consummated by the deed of August 25,1888, the title to the premises passed to him divested of any interest or claim which his former cotenants.might have had therein.
Why therefore should the defendant not hold the land for his own use ? In doing so there is certainly nothing “ repugnant to a sense of refined and accurate justice; ” nor inconsistent with the title acquired by him. His former eotenants were presumed to know that if Samuel acquired the title to the property without their acquiescence, he would, under the law, hold it for them as well as for himself, and hence their interests would thereby be protected. Their knowledge of this fact directs attention to the further fact, that there must have been some purpose in the execution and delivery of the paper of June 30,1888, and that that purpose was to relieve the title acquired by Samuel from any interests the parties might have in the land by reason of his being their cotenant. When therefore they directed the lands to be conveyed to Samuel absolutely and thus assented to a sale to him, in fee simple, the inference is, that in taking the title he was acting for himself, and that it was the intention of all the parties that the title should be held by Samuel discharged of any trust for, or claim of, his former cotenants. He had the right to decline to take the title on any other terms and it is a fair and reasonable presumption arising from the direction contained in the paper of June 30,1888, that he had refused to take it with the indebtedness thereby incurred, until his former cotenants relieved it 'from any claim they might have against it. Such, evidently, was the intention of the parties to the transaction as well as the effect of the deed to Watson supplemented by the paper addressed to Mr. Thaw, and therefore he held the property divested of any incumbrances or claim of his former cotenants which could, after a lapse of ten years, consistent with equity or justice be asserted against it.
*247But it is claimed that the oral testimony as well as the written evidence produced by plaintiff should have been submitted to the jury on the question of “ the true character of the transaction, how it came about, and how Mr. Watson by constant admissions and acknowledgments held the title for and on behalf of himself and his brothers for over four years after the deed was made to him by William Thaw, August 25, 1888.” In other words the jury should have been permitted to determine from the evidence submitted whether Samuel Watson accepted the deed and held the title from Thaw under a parol agreement with his former cotenants that he would hold the property for himself and his brothers, subject to the payment of the indebtedness. Let it be conceded that under the testimony the jury would have found such to be the fact. We then have the plaintiff showing that by a parol agreement the defendant agreed to take and hold the property not in fee simple and solely for his own use as the deed made to him by direction of his former cotenants declares, but in trust for them. The offer of such testimony for the purpose stated is an admission on the part of the plaintiff that the effect of the deed of August 25, 1888, in connection with the paper of June 80, 1888, was to place the title to the premises in the defendant, freed from the interests of his former cotenants. Otherwise there would have been no necessity for the introduction of the testimony as under the law without the paper Samuel would have held the title, subject to the rights of his former co-owners. The effect therefore of the evidence offered was to establish a parol trust in the defendant, in favor of his former cotenants. This is expressly forbidden by the 4th section of the Act of April 22, 1856, P. L. 533, Purd. Dig. 942 pl. 3.
The second reason in support of the plaintiff’s contention is that the defendant held the property under a trust ex maleficio, not subject to the limitation of the 6th section of the act of April 22, 1856, but within the proviso of the 4th section of that act. The 6th section denies any right of action “to enforce any implied or resulting trust as to realty, but within five years after such .... trust accrued .... unless such .... trust shall have been acknowledged by writing to subsist by the party to be charged therewith, within the same period; provided that as to any one affected with a trust by reason of his *248fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same.” The 4th section of the act provides that all declarations of trust in land shall be manifested by writing, signed by the party holding the title thereof, or be void, “ Provided that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by implication or construction of law .... then .... such trust or confidence shall be of like force and effect as if this act had not been passed.” It is not alleged that Samuel Watson signed any written declaration of trust in favor of his brothers for the premises in dispute, or that his title was procured by any misrepresentation or fraud so as to enable the plaintiff to avail herself of the proviso to the 6th section of the act. But if such fraud was shown she could get no benefit from this proviso, as she testifies that shortly after her husband’s death, which occurred in April, 1891, she had a conversation with Samuel Watson in which he claimed that he had the title to the property absolutely, and would do as he pleased with it. This was a distinct denial of the alleged trust and nearly seven years prior to the bringing of this action, January, 1898. It is however contended that the confidence or trust included within the proviso of the 4th section is of a different character from the implied or resulting trust covered by the 6th section of the act, and hence this case is not subject to the limitation of this latter section of the act.
. The view we take of the case does not render it necessary to discuss or determine this question. It may, however, be suggested that it has been repeatedly held, that trusts arising ex maleficio which are embraced within the proviso of the 4th section of the act of 1856 are also within the 6th section of that act: Christy v. Sill, 95 Pa. 380; Barry v. Hill, 166 Pa. 344. In addition to this it has been held by Mr. Justice Shab.S'wood that the trusts excepted in the proviso of the 4th section of the act are those included in the 6th section of the same act. In discussing and construing the 6th section of the act in Harper’s Appeal, 64 Pa. 315, Justice Shars'WOOD delivering the opinion of the court says: “ The trusts here meant (in section 6) are evidently those excepted from the provision of the 4th section of the same act, invalidating parol declarations of trust, namely, *249‘ when any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise, or result by implication or construction of law, or be transferred or extinguished by act or operation of law.’ ”
We are not convinced that Samuel Watson was a trustee ex maleficio. On the contrary, he took the title not in fraud of his co-owners, but with their written consent and by their direction, and hence with their approval of the vesting in him absolutely of the title by the deed of William Thaw. He therefore held the land divested of any claim of his former cotenants and of any trust unless it be one raised by a parol agreement. We agree with the learned judge of the court below, that the evidence submitted was too uncertain and vague to sustain a trust, but that if a trust was created it was within the 4th section of the act of April 22, 1856. The court in his opinion refusing a new trial quotes the material part of the evidence on this point, and we think it fully justifies his conclusions.
The view, therefore, we entertain of the case, is that Samuel Watson had an indefeasible title to the premises, divested of any interest or claim of his former cotenants; that the testimony adduced by the plaintiff was insufficient to create a trust, and if a trust was raised the act of April 22, 1856 was a complete bar to a recovery.
The assignments of error are overruled and the judgment is affirmed.