Opinion by
Mb. Justice Mitchell,The foundation of the plaintiff’s title to the land was the agreement of the purchaser at sheriff’s sale to reconvey on payment of a certain sum within thirty days. This option, so-called, was exercised by Paul in behalf of plaintiffs upon an express agreement, but in parol, that he would convey the land to them, less one acre, upon payment of the money advanced within three years. This is plaintiffs’ own version of the agreement and it amounts at most to a parol mortgage which cannot be enforced under the act of 1881.
Nor is the case any stronger on the ground of trust. Plaintiffs did not furnish any of the money with which Paul bought, nor was there any act of fraud or deceit on his part from which the law would raise a trust by implication. The only act relied on, his refusal to put the alleged agreement in writing, is, in the absence of any other facts, insufficient to establish a trust ex maleficio. It was the simple case of an alleged parol agreement to convey land on conditions never complied with, which could not have been enforced against Paul under the act of 1856, and which of course was of no validity against his vendee, who bought an apparently clear legal title.
The proceedings in the orphans’ court are immaterial. The decree of sale upon the contract of Paul, after his death, was made in January, 1898. Whatever might have been its effect had it remained in force, it was vacated and the order of sale revoked for failure of appellant to comply with the terms in September, 1898. When therefore defendant Morgan bought from Miss Paul in 1899, there was no outstanding title in appellant of which he was obliged to take notice.
Judgment affirmed.