The opinion of the court was delivered by
Smith, J.This was an ejectment for a tract of land in Mifflin county, alleged to have been purchased by David Walker, the defendant, for the use of the plaintiff, in which both parties claimed under the same title. The causé was tried before Chief Justice Gibson, on the 15th of April, 1829, when a verdict passed for the plaintiff, and a motion for a new trial was overruled; whereupon, the defendants appealed to this court. Seven reasons are assigned, for a newtrial, of which the first, third, and sixth, may be considered together. The substance of these reasons is, that the parol evidence admitted, was contrary to the provisions of the-statute of *413frauds and perjuries; that the court erred in deciding, that the case was not within that statute; and, that the verdict was against the law, evidence, and justice of the case.- .
It is alleged, that the difficulty in this case arises from our act of assembly for the prevention of frauds and perjuries, in which it is declared, that no interest in lands shall pass, but by deed or note, in writing; and, it is contended, that no parol proof can be admitted to-contradict, add to, diminish, or vary a deed or writing; that, although there are exceptions to the rule, and cases may be found, in which parol proof has beeu received, notwithstanding deeds had passed between-the parties; yet, the proof offered and'given in -this case, is not within the exceptions, nor the decisions of. those cases; because, the parol evidence, directly contradicted the sheriff’s deed to David Walker; and in short, that the evidence of the parol agreement set up, was not full and explicit.
This testimony, on a fair and candid examination, will not, I apprehend, be found liable to these objections. The witnesses have stated explicitly, that at the sale, David Walker declared he was buying the land for Samuel Brawn, and at different times, after the sale, said he had bought it for him; that when the crier asked him for the customary fee on sales, he declared that he had bought for his friend Samuel Brown, whose circumstances he knew, and therefore, should not ask the fee, and that this took place at the second sale.1 It also appeared, that Samuel Brown was a sickly man, and was so long before, and at the time of the sale. From James Kinsloe’s testimony, it appeared, that one Myers was bidding for the land, at the first sale; at which time, David Walker and the witness stated to Myers, that he, David Walker, was bidding the land in for Samuel Brown; that on this, Myers .ceased to bid, and shortly after, the land was struck off to David Walker. Other witnesses proved, that David Walker declarad he was buying the land for Samuel Brown. -Arid William P. Elliot says, he thought, though he was not certain, it was entered on the sheriff’s list, ii bought by •Walker for Brown.” The question then is, whether the engagement of David Walker, concerning this land, although not in writing, is made void by our act for preventing frauds and perjuries; which, in fact, was, and is. the turning point of the cause. We are of the opinion that it is not, and that the parol evidence was properly admitted by the Chief Justice on the trial of the cause. The object of the act was, the prevention of fraud; arid, to allow it to be interposed as a bar to. the performance of this par'ol engagement, would, in my opinion, encourage the very mischief which the legislature intended to prevent. David Walker, at the sheriff’s sale, declared, again and. again, that he purchased for Samuel Brown. -Although he afterwards obtained a deed for the land from the -sheriff to himself, yet, in equity, he was, under the circumstances, & trustee for Samuel Brown, for the engagement b« had made enured, to Brown’s benefit; and to this effect is the decision in the case of *414Stewart v. Brown, 2 Serg. & Rawle, 461. To me it is evident, that the conduct of David Walker, was calculated to do an injury to Samuel Brown, inasmuch as it prevented others from bidding and purchasing; for his declarations clearly led those inclined to purchase, to believe he was acting for a poor man, that he was buying for him, and not for himself. No doubt, Samuel Brown was induced by David Walker to rely on him, and, therefore, did not take any other steps to secure the land, and David Walker should not reap the benefit of such conduct; nor can he, for a trust thereby arises to Samuel Brown, whom he becomes a trustee.' To decide otherwise, and allow him to hold the. land, under such circumstances, would be supporting a breach of trust, and a fraud in law. See 4 Serg. & Rawle, 539, 540, and 570.
But, in addition to all this, it appears, that Samuel Brown was sickly, poor, and wholly unable' to purchase himself; he therefore entered into an arrangement with David Walker, to purchase the land for him. To this, Walker, freely agreed, and I believe at the time, fairly and honestly, intended to live up to the arrangement. Shall he, when Samuel Brown' is dead and gone, be permitted to say, “ I did not so purchase, I am not a trustee for him?”-—The first sale was set aside, and some time elapsed before the second sale. David Wxlker, at the second sale, declared again, that he was purchasing for the use of Samuel Brown; he therefore must have considered the first arrangement in full force at the time; and immediately after this sale, we find, Samuel Brown claimed the land as his. If then both parties considered the arrangement in full force at the second sale, I am at a loss to. discover any difficulty in this case; but must say, that the jury were right in finding for the plaintiff, and thereby declaring that David Walker, the purchaser, notwithstanding he has the legal title, is a trustee, " holding- for Samuel Brown. If David Walker did not act, and purchase for Samuel Brown, I would ask, how are we to account for his repeated declarations? Were they merely made fo prevent others from bidding, and enable him to purchase the land for his own use, as cheap as possible?—And if so, shall he be the gainer, and reap the benefit of this deception, by appropriating the land to himself?—• This would be unjust and fraudulent. - Such conduct would, in the language of the Chief Justice, stop his mouth ever after, from asserting any thing, contrary to. what he declared at and after the sale. David Walker ought to set this matter right; he has the opportunity of doing so, by conveying the land to the plaintiff, and taking from the office his money tendered to him; if he does not, he may be compelled to set it right, under the equitable, powers of our courts of justice.—A majority of the court, are of the opinion,. that the pwol evidence was properly received, and that there was proved not only a fraud in David Walker, but a trust, which, »though not. declared in writing, was valid, notwithstanding the act of frauds and perjurks, The verdict then was not against the law, *415the evidence, and the justice of the case, and-a new trial was pro-, perly refused.
But it is said, (in the second reason for a new trial,) that the court erred in the construction of the will of Samuel Brown. It is contended, that Samuel Brown’s estate or interest in this land, •if he had any, by his will, vested in his executors; .that his intention was to dispose of all his estate; that the'words “ all my earthly property,” were sufficiently large to include real estate; and, that therefore his executors should have sued. . "It is true, the word (t property,” may sometimes include land. 6 Serg. & Rawle, 456. But in'this will, there was no direction to sell the land, and therefore, there is nothing to prevent the heir from suing. I think the word property was not intended to include land, because, there are in the will no words of inheritance or perpetuity, applicable to the land; and it will not do to disinherit the heir by mere implication, or presumption. 2 Binn. 20. 3 Binn. 488. Here it is evident, it was intended to include personal property only, and the intention of the testator must govern. This objection to the verdict is therefore not sustained.
The fourth .and-seventh reasons, assigned for a new trial, will be considered togethei’. It is alleged, that the court erred in deciding, that William Brown had authority, on the third of January, 1824, to make a tender to David Walker for Samuel Brown, the minor. It is true, he had not at that time been legally appointed the guardian of the minor; but he was his uncle,- and surely one so near in blood may lawfully interpose as his next friend. We think an infant ought not to lose his inheritance, merely because he has no guardian; his uncle or next friend may act for him; he did so here; the tender by him was well made. But it is said it was in bank notes, and therefore not legal. It was partly in bank notes, but the uncle offered to exchange them'for silver.-— Walker thereupon refused, and said he would have none of it; so that after such a declaration, it was not necessary to do more, and the tender was good and ¡sufficient.
In the last place (the fifth reason,) it is contended, that the acceptance of - a lease by Samuel Brown from David Walker, was an abandonment of his claim. However strong this. circumstance may appear, it is to be remembéred, that it was contended on the evidence in the cause, that the lease was improperly obtained, and at a time when Samuel Brown, in his then state could -aot refuse to sign it. Whether it was so obtained, was submitted to the jury with all the facts attending it; the jury have passed it, and found it.under the circumstances, not to be a waver or abandonment of right. I think the submission to. the jury for their decision was correct. A tenant may impeach his landford’s title, if induced to take a lease by misrepresentation.and fraud. Miller v. M'Brier, 14 Serg. & Rawle 382, and Hamilton v. Marsden, 6 Binn. 45; *416in which case it was held, that the lessee might contest the title of the lessor, where he threatened to turn .the.Iessee off, if he did not take a lease. By the verdict in the case before us, the lease was impeached. We have then presented to us, the case of an agent of a poor and sick man, conducting, if not in bad faith, at least fraudulently iii law: we see a trust proved, and a legal fraud in the agent, and we are called upon, to pronounce the operation of the law in such a case. Our answer is, that David Walker should transfer the land to the plaintiff according to.the trust. If this be refused, it is in this state to be enforced by an ejectment; for having no court of equity, we consider that as already done, which in equity ought to have been done; and therefore, in a case, in which a court of equity would decree a trust, or direct a conveyance, the' courts of this state, with the aid of a jury, will enforce the same by a recovery off the land in an action of ejectment. I refer to Stewart v. Brown, 2 Serg. & Rawle, 461. Vincent v. Huff, 4 Serg. & Rawle, 298. Gause v. Wiley, 4 Serg. & Rawle, 538, and Peebles v. Reading, 8 Serg. & Rawle, 484. The motion for a new trial is therefore denied, and the judgment ,of the Circuit Court affirmed.