Allebach v. Godshalk

116 Pa. 329 | Pa. | 1887

Opinion,

Mr. Justice Gordon :

The defence, in the case before us, is of a very flimsy and unsubstantial kind; an alleged parol sale with nothing to deliver it from the grasp of the statute of frauds and perjuries. Godshalk’s claim to the lot described in the writ had its origin in the lottery contract of the 25th of October, 1875, and was, of course, void under the act of March 31, 1860. Martin Kulp had drawn at the lottery lot No. 42, the one in controversy, and the defendant No. 38. They agreed to exchange and to this arrangement, it is said, the plaintiff assented. It is further alleged that the deed for this lot was duly executed and delivered in escrow to the Schwenksville Bank. That the deed was executed by the plaintiff, along with others, is admitted, but that it was delivered, even in escrow, is denied. John C. Boorse, who drew the deeds, and had them executed, says he delivered them to the plaintiff, and that he did not understand that it was part of the contract, that they should be deposited in the bank for delivery, whilst Allebaeh testifies that he left them at the bank for his own convenience, and afterwards took them to his own house. All this, however, matters but little, for at best, this deed not having been in fact delivered, could not have been used except as proof of the terms and conditions of the parol sale, and without other proof could not, of itself, avoid the statute: Hart v. Carroll, 85 Penn. St. 508. Furthermore, this deed, with the others, was executed in pursuance of the lottery agreement, upon which the defendant’s title, whether to lot No. 88 or No. 42, depended, so that it was altogether worthless for any purpose. Moreover, the payment of the fifty dollars purchase money was, as G-odshalk confesses, paid on the lottery contract of October 25, 1875, and is in consequence out of the ease. Again: as to the improvements which the defendant alleged he put on the lot in pursuance of the parol sale, these can have no effect to redeem the case from the statute; for, except the fence, they were removed before or about the time of the bringing of this ejectment suit. It is thus manifest that the defendant’s oral contract has not the shadow of foundation on which to stand. As to the plaintiff, were he attempting to enforce the 25th of October contract, he, in like manner, could have no standing in court; for it would be allowable to prove that this contract was executed for an unlawful purpose, hence his defeat would be inevitable: Bredin’s Appeal, 92 Penn. St. 241. But he is attempting nothing of the kind; his suit is ejectment, and he stands upon an untainted legal title which cannot be affected by the collateral illegal con-, tract, any more than by the unexecuted paro-l contract. By .all rules, therefore, the plaintiff should have had the verdict, and so the court ought to have instructed the jury. As what we have said sustains the plaintiff’s first assignment of error, we need not notice the others.

The judgment is reversed, and a new venire ordered.