On the trial, the court, on the motion of the appellants, the plaintiffs below, by an instruction, limited the recovery in this action, in any event, to -the lands still undisposed of and the proceeds of the lands sold by Mitchell or his heirs since the death o’f Minot. If, therefore, any error was commited by the court which alone affected the question of a recovery for the personal property, such error would not be available here.
So far as the real estate is involved, the complaint does not make Mitchell a trustee. His purchase at sheriff’s sale was with his own money, and no fraud is charged in such purchase. It is not alleged that he prevented others from bidding on the property by representing 'that he was purchasing for the benefit of Minot.
It is a simple averment of a verbal agreement that Mitch.cll should purchase the property at sheriff’s sale and take the title in his own name, he agreeing to hold it for the benefit of Minot. According to the complaint he did so purchase. The legal title vested in him without fraud. Can he bo treated as a trustee? The rule is thus stated: “But in no case will the grantee be deemed a trustee, if he used no fraud or deceit in getting his title, although he verbally promised to hold the land for the grantor.” Browne Statute Frauds, 92, § 95.
This practically ends the case. The rulings of the court upon the paragraphs of the answer pleading the statute of limitations are of no importance. The parapraphs were sustained, but no such issue was submitted to the jury by the charge of the court, as the transaction was treated as a mortgage, which certainly is a most favorable view for the appellants. The jury found that there was no fraud iu the purchase at sheriff’s sale, and that the subsequent deed was made without fraud and for the purpose of making Mitchell’s title absolute.
Upon the exclusion.of the evidence' of Jane Minot, the *235widow of the ancestor of the heirs who sue, it is sufficient to say that she was not offered to. prove fraud iñ the purchase at sheriff’s sale, nor would such evidence have been proper, or relevant to the averments of the complaint.
W. II. Coombs, and W. II. II. Miller, for appellants. J. L. Worden and J. Morris for appellee.The judgment is affirmed, with costs.