| Pa. | Jun 15, 1829
Lead Opinion
The opinion of the court was delivered by
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
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
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,
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;
Dissenting Opinion
dissented, and delivered the following opinion’:—I do not take it to be at all material in the present case, that the fourth section of the British statute of frauds and perjuries is omitted in our act of assembly; for it is not damages, that are now demanded for non-performance of an alleged parol contract; but the plaintiff sues by ejectment, claiming possession of the land itself, and alleging an actual transfer of the title. •
Beyond a doubt the words of the act of assembly are clear and positive against the plaintiff: but for a long course of years, perhaps from the date of the British statute, parol titles, created under certain particular circumstances, have been sustained by the iules of equity against the strict words of the law, by a train of decisions sanctioned sometimes by legislative authority, so that there are now admitted.decided exceptions, as well known as the law itself. But it certainly has for many years past been usual for courts of justice ■ to regret, that these exceptions were ever made from the statute by construction, and to declare that under no pretence whatever, should any new exceptions be introduced.
In my opinion, most clearly the Chief Justice was right in admitting the evidence as offered. ■ But after the whole evidence had been heard, was it such as to take the case out off the statute, and give a title to land,; or in other words, the jury having upon such proof ffound a verdict for the plaintiff, ought the court now to interfere and set aside the verdict? Has the parol title here been made out by proof so unexceptio-nably clear, as to bring the case within any of the established exceptions to the statute?
Whatever there is of. fraud or trust in the case, upon which Brown’s equitable claim is supported against the legal title of Walker, depends upon four witnesses, Zeigler, Kinsloe, Elliot and Warwick. These four principal witnesses were called by the plaintiff, and one witness by the defendant. To show how'little dependence is to be put upon the remembrance of words spoken relative to contracts for real estate, it happens that the plaintiff’s witnesses agree neither with the defendant’s witness, nor with each other. Zeigler and Elliot, concur in stating that Walker repeatedly declared that he was buying the land for BroiOn; but the only circumstance which makes this evidence of any use in the case, viz. that these declarations were at the time of the second sale by the sheriff; is positively denied by Kinsloe, who swears that all those declarations by Walker, were at the first attempt to sell, one full year before, and thafnot one word was uttered upon the subject at the second sale. Kinsloe. adds further a most material fact, that one condition of Walker’s promise at the first sale was, that a debt due from Brown to Walker was to be let in, as the witness called it, and paid. Kinsloe swore also that there was an express exception of a few acres, how many he.did not say, for Nancy Ferguson' near the still house, stating the reasons for the exception. Warwick, the fourth of the plaintiff’s witnesses, who was present at the second sale, proves these words by Walker. ie I intend to give it to Brown, and I intend to let Kinsloe have a chance of the part he is concerned in; and I will reserve a part for Nancy Ferguson.’] On cross-examination, Warwick stated further, that Walker at the same time complained that Brown had disappointed him in money, but the Witness could not recollect the .particulars.
Curran, the defendants’ witness, states a material fact, unsaid by any of the rest, that another condition of the arrangement at the first sale was, that Brown was to pay down four hundred dollars, and this is strongly confirmed by Kinsloe, stating that Walker was not to lay out his own money.
Clearly, if any single fact is well made out by the evidence, it is that some reservation was intended for Nancy Ferguson. But without any notice of the positive exception on her behalf, the jury have awarded the whole tract to the'plaintiff directly against his own proof.
Curran and Kinsloe, were the only witnesses who ever saw Walker and Brown together conferring upon the subject of the the land. They both prove some essential- previous conditions
It is an established rule of chancery never to decree against the t words of the statute of frauds, in any case whatever upon mere parol proof, where that proof is contradictory. Rowton v. Rowton, 1 Hen. & Munf. 91.
My impression is, that the plaintiff could not recover the land, even if the statute of frauds were not in his way. But under that statute, beyond a question, the verdict appears to me to be wrong. There is in the case no part, performance, nor the pretence of it. But, it is argued at bar, here is a-trust,: a fraud, which.I deny, if by trust and fraud, are meant the same things that are meant by those words in a court of equity. Such a trust is not, as far as I can discover, to be found in any chancery proceedings, as that of a man having purchased a legal title to land in his own name, with his own money, being called on and enforced to convey to another, by parol proof, of a bare promise without consideration, the merest nudum pactum, in favour of one whose sole interest in the title was what the promise created. There appears no more fraud here than what-is implied in every .non-performance of a.promise. An action at law could not, I,think, be sustained,for damages for breach of such engagement. And as to chancery, it is laid down that even before the statute of frauds, equity would not execute a mere parol agreement not in part performed. ' Sugden on Vend. 86.
That a gratuitous promise will not support a bill in equity, any more than it will an action' at law is shown by 3 P. Wms. 131, 317. 1 Vern. 12. 1 Ves. 507. 2 Ves. 310, 547. 7 Johns. Rep. 207, 332. 10 Johns. 246, 594.
There are many authorities which, in my opinion, would clearly show that the present case is not one calling for equitable relief against the words of the statute. 1 P. Williams, 771. 5 Mass. 133. 1 Dessaus. 289. 9 Mass. 510, 533. 11 Mass. 342. 15 Mass. 85. 16 Mass. 221. 4 Cranch, 235. 5 Johns. Rep. 272. 1 Root, 59, 549. 3 Johns. Rep. 216. 7 Cranch, 176. Prec. Chancery, 69. Smith L. 393, notes.
But the main thing in the case is the inconclusiveness of the ■ proof. Even Brown hims.elf, though he lived for about a year after Walker’s deed from the sheriff, and during nearly the whole of
This lease would, I apprehend, amount to a discharge and surrender of parol claims to the land, if he had any.. It is argued, that this coming under lease must have been compulsory. There is no proof of compulsion, nor, to my mind, any probability of it; for the man’s last will, drawn apparently with the utmost care and minuteness, and specifying some of the smallest articles of personal property, yet, mentions not a syllable about the plantation which this verdict says he was then the owner of. . ■
if the staíuté of frauds cannot protect David Walker in his legal title, there seems one peculiar hardship in his case. In England, and in ¿11 those states in which courts of equity are. established, the man whose freehold is attacked by parol proof and alleged promises, would generally have the privilege to be himself sworn, and on his oath to contradict or explain the evidence. But by our mode of proceeding in Pennsylvania, Walker’s mouth is closed. So, that a witness who arrives at the middle of a conversation, maybe sworn as to one half, without the right of the defendant even to state to the jury what the other half was. In my opinion, the parol proof which is to dispense with the statute of frauds, ought to be stronger and clearer here than in any country where they have a special chancery jurisdiction. The verdict being, as I think, decidedly ag¿inst, evidence and law, I am for'setting it aside, and awarding a new trial.
Judgment affirmed.