14 Pa. 248 | Pa. | 1850
The opinion of the court was delivered by
— A conveyance, unaccordant with the possession, is never presumed from lapse of time; and the plaintiffs have not been in possession. But a fiction, by which equity is enabled to look on things agreed 'to be done as actually done, enabled us when we had not chancery, powers, and still enables us when we have, to sustain an ejectment on an executory agreement; and it is, consequently, unnecessary to presume a conveyance to those who are entitled to have it. For one part of the land, the plaintiffs have brought their action on an equitable title, derived from an unexecuted parol contract of sale to the father of one of them; and the single question is, whether it is taken out of the statute of frauds by the acquiescence of the vendors, who are the plaintiffs’ witnesses, promoting a recovery by their testimony, instead of opposing it even by a wish. They stand in the attitude of respondents to a bill in equity, confessing the contract, and refusing to plead the statute. They not only confess it, but they swear to it. In England, the plaintiffs would file their bill against them, if they were unwilling to convey, without the direction of a court of equity; and on their confessing the contract, without interposing the statute, specific performance of it would be decreed; after which, the plaintiffs would make short work with the intrusive defendants, in an action founded on the legal title. As the latter would have no right to intermeddle with the parties in equity, they would not *be made parties to the bill; and the result of the two suits would be a judgment at law to recover the possession, which is obtained here by
Judgment affirmed.