66 Pa. 277 | Pa. | 1870
The opinion of the court was delivered, November 3d 1870, by
— This is a proceeding under the 15th section of the Act of 24th February 1834, in the Orphans’ Court, to obtain a decree for specific performance of a written contract for the sale of land between Joseph Brady and his son Hugh Brady. Hugh Brady, the purchaser, presented the petition against the administrator with the will annexed, and the devisees of Joseph Brady, who died after the written agreement was executed, without making a provision for its performance, and, indeed, having protested against carrying it into execution. Nothing whatever was done by the parties toward its execution in the lifetime of Joseph Brady. Hugh Brady, the son, was living on the land, farming it for his father, when the writing was entered into, and continued upon the same terms afterwards. The terms of the writing upon which Hugh was to remain on the farm during the lifetime of his father and mother being the same, or nearly so, as those upon which he was farming the place, it might be fairly presumed that he was living there after the execution of the writing under its terms, had not the evidence shown the contrary very conclusively. The writing was executed on Saturday, and the evidence shows
The question, therefore, is whether upon the proof a chancellor would be moved to decree specific performance. The fact that the proceeding is in the Orphans’ Court, we think, makes no difference. The section of the act referred to provides that “such court shall have power, if the facts of the case be sufficient in equity, and no sufficient cause be shown to the contrary, to decree the specific performance of such contract, according to the true intent and meaning thereof.” The case being referred by the law to equity, the principles which govern the doctrine of specific performance must be the same, whether the case be in the Orphans’ Court or in the Common Pleas as a court of chancery. In equity proceedings it is well settled the decree is of grace, and not of right, and a chancellor, if he find reasons to withhold his assistance, will refuse specific performance, and leave the party to his remedy for damages. We have applied this rule in a case decided at the present term: Piersoll v. Neill, 13 P. F. Smith 420, opinion by the Chief Justice, where the action was an ejectment to enforce specific performance. In that case it is held that it is the duty of the judge trying the cause, if the case be insufficient in equity, to take it from the jury, by instructing them that on all the facts proved the plaintiff is not entitled to a verdict. The judge takes the place of a chancellor in such a trial, and must see that a verdict be not rendered against the principles of equity. Eor, though, the action is in form at common law, the plaintiff seeking to recover on an equitable title is permitted to do so only on the principle that equity considers that as done which, according to equity, ought to be done. If, therefore, a chancellor woul4 feel that he ought not to be moved by the facts presented, a decree would not be granted.
Applying these principles to the case before us, what are the facts ? Taking the testimony of the complainant, it will be seen that this contract of sale did not originate with Joseph Brady and he had no hand in producing it. It came from Hugh Brady, who contrived the plan to procure it, sent the agent to execute his purpose, and suggested the motive to operate upon the mind of his father. Joseph Brady was a feeble old man, upward of ninety years of age, wholly incapable of taking upon himself the direction and management of his farm, confined much of the time to his bed, and having a wife of nearly equal age to provide for. Eor years his farm had been farmed by his sons. Abraham had died and Hugh taken his place, at a fair and ordinary compensa
Upon summing up the whole case we have, therefore, a con
Decree of the Orphans’ Court reversed, and the petition dismissed with costs below, and the costs of this appeal to be paid by Hugh Brady, the appellee.