7 Pa. 157 | Pa. | 1847
An ejectment to enforce specific performance of a purchase, being with us a substitute for a bill in equity, is to be affected with all those considerations that would affect a bill for that purpose in the contemplation of a chancellor. With him the enforcement of the contract is not of right, but of grace; and he withholds the exercise of his extraordinary power wherever there is a doubt about the facts on the basis of which it
The plaintiff was bound, in the first place, to prove, not only the existence of the contract, but the terms and conditions of it, which seems to have been sufficiently done by the testimony of the vendor’s tenant, McGibbeny, who swore that his landlord, John Brawdy, under whom both parties claim, told him he had sold the lot in contest to his brother Moses, the plaintiff, for $900; and that if he, the tenant, desired to live longer on it he must rent it from Moses. This is corroborated by the fact that the ground, as it had been described to the witness by the vendor, was subsequently laid off by a surveyor in the presence of the parties. There wTas no written memorandum of the bargain, but that is not essential. The case of Symondson v. Tweed, Prec. in Ch. 374, in which it was said that wherever the court had decreed specific performance, the contract had been made out from letters containing the stipulations in it, is no longer to be regarded as authority, at least in Pennsylvania, where the whole of the English statutes has not been enacted. A contract, thus put in writing, would satisfy even the fourth section of that statute without aid from part performance. Nor is more respect to be had to the doctrine of Lord Alvanley in Forster v. Hale, 3 Ves. 712, that the courts had gone too far, after proof of part execution of some agreement, in admitting parol evidence of the contents of it; for it is the constant practice in these latter days, to enforce such contracts on parol proof of their terms. But taking the agreement to have been well proved, was there sufficient proof that it had been partly executed?
The facts are these: — McGibbeny, the tenant of John, the vendor, was told by him that if he wanted to live on the lot any longei’, he must rent it from Moses, and he did so; but offering to pay Moses the rent at the end of the year, he was told by him to settle with the old man, (John,) and he did so. McGibbeny, when going to quit, gave notice to Moses; but when hemoved out, John moved in, and has remained ever since in the actual possession. Moses paid a considerable part of the purchase-money; but it is settled that payment alone does not constitute part-performance. Now it is observable that there was no notorious transfer of the actual possession, such as was required in Pugh v. Good, 3 Watts &
Judgment affirmed.