229 Pa. 7 | Pa. | 1910
Opinion by
The question presented by this record is whether the evidence offered by defendant was sufficient to establish a parol gift of a certain lot of ground. It appears that in 1891, George W. Boyer, father of the defendant, became the owner of what was known as the Franklin House property in the borough of St. Marys. It contained a little more than half an acre of ground. A small frame building stood in one corner, which the defendant, C. W. Boyer, while living with his parents, was permitted to occupy as an office for the practice of dentistry. The evidence tends to show that in 1895, when defendant was about to be married, his father made to him a parol gift of the ground and the small frame building upon it, as a wedding gift. In the same year defendant contracted for the enlargement and alteration of the building, so as to fit it for use as a dwelling and an office; and after his marriage he occupied it as such, and has continued such use and possession ever since. In 1901, some six years after defendant took possession of the dwelling, the Franklin House, which was the hotel property adjoining, was partly destroyed by fire. The plaintiff company contracted with the father of defendant, to rebuild the hotel; but there was evidence that before beginning the work, the representative of plaintiff was notified that
This is not an attempt to set up a parol contract against the father by the son. Nor is the contract dependent upon an inference merely from the declaration of one of the parties. There was evidence here, as required by the doctrine of the case of Ackerman v. Fisher, 57 Pa. 457, to show that in the matter of the gift, the parties were brought together face to face, and that the bargain which was made between them in that respect, was repeatedly acknowledged by each to the other. The father testified squarely that he made a present of the lot to his son, the defendant, years before the plaintiff company had anything to do with the rebuilding of the hotel. That after he gave the lot to his son, he negotiated for him a mortgage loan from a building and loan association, to pay for changing the building from an office room to a dwelling; that the son reimbursed him for the payments made on the mortgage, and for taxes, insurance and water rent on the property. This evidence upon behalf of defendant is not contradicted. Nor is the testimony of both father and son denied, that in March, 1894, before the son began the erection of the dwelling house, the two of them staked off the boundaries of the lot. We agree with the trial judge that a fair construction of the evidence shows that the son was not in possession of the property as a tenant prior to the gift, in any such sense as would bring the transaction within the meaning of the rule that forbids a parol sale to a tenant in possession.
Under the charge of the court, the jury must have found as a fact not only that there was constructive notice of defendant’s title by reason of his possession and the improvements he contracted for in his own name, and paid for; but in addition thereto, that the plaintiff had actual notice of his ownership before it extended credit to defendant’s father in connection with the hotel property. If the fact of the parol gift was established, then the question of rental value of the property thereafter, does not arise, and there was no error in the refusal of the trial court to permit proof thereof.
By the affirmance of the first point for charge presented by counsel for plaintiff, the jury were instructed that “In order to take such a parol gift or contract from father to his son as claimed in this case, out of the statute of frauds and perjuries, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of land. It must establish the fact that possession was taken in pursuance of the contract and at or imme
We think this case upon its facts is clearly to be distinguished from Wright v. Nulton, 219 Pa. 253. There the boundaries were not defined: here there is evidence that they were. There the defendants were living upon the property before the gift, and there was no visible change in possession: here there was evidence of possession taken under the contract, and valuable improvements made thereafter. There the possession was not exclusive: here it was. With no disposition to narrow in any way the rule there followed, which has been settled by a long line of cases as to the essentials required to take a parol contract for the sale of lands out of the operation of the statute of frauds, we feel that there was evidence in this case sufficient to support the verdict of the jury.
The assignments of error are all overruled, and the judgment is affirmed.