Irwin v. Cooper

| Pa. | Jan 5, 1880

Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

If*the evidence offered by the defendant below of the parol sale by William Cooper to his brother Abraham Cooper, of the interest of the former in the land in controversy had been in reference to recent events, it may be the court below would have been right in declaring it insufficient, and directing a verdict for the plaintiffs. But time is an important factor in such transactions. Abraham Cooper and those claiming under him, had been in peaceful possession of the property about twenty-seven years before this suit was commenced. It would be unreasonable, after such a lapse of time, to require the same strictness of proof' in establishing a parol sale as is requisite where the transaction is recent.

Richards v. Elwell, 12 Wright 361, was a case of a parol sale of lands, and the question of the effect of lapse of time upon the proof of the contract was fully considered. It was said, by Agnew, J., “If the rule which requires the proof to bring the parties face to face, and to hear them make the bargain or repeat it, and to state all its terms with precision and satisfaction, is not to be relaxed after the lapse of forty years, when shall it be ? After the lapse of fifty or sixty years it is not probable that any witness can be found above ground to state anything. Shall we wait for that period before we begin to relax ? In the ordinary course of human affairs forty years are almost as likely to carry the proofs beyond the memory of living witnesses. It is contrary to the presumptions raised in all other cases, presumptions which are used to cut off and destroy rights and titles founded upon records, deeds, wills and the mofet solemn rights of men. Based upon a time much shorter than in this case, we have the presumptions of a deed, grant, release, payment, survey, abandonment and the like. . Indeed, all our Statutes of Limitation are founded on this principle, with this difference, that the presumption which was before inconclusive becomes absolute by the statute.” To the same point are Read v. Goodyear, 17 S. & R. 350; Strimpfler v. Roberts, 6 Harris 298; Webb v. Dean, 9 Id. 29; Brock v. Savage, 7 Casey 410, and 10 Wright 83, cited in the above opinion. The same reasoning that was applied to a possession of forty years, may be invoked for a possession of twenty-seven years. It differs only in force. Presumptions of this character are the creatures of time. At first weak and inconclusive, they gather strength with each succeeding year, until at last they acquire a force upon which a title may be safely rested.

The farm for which this action of ejectment was brought at one time belonged to Samuel Cooper. He devised it to his three sons, William, John and Abraham, with a provision “ that their mother have her living off the proceeds of the place as long as she remains in her widowhood.” At that time the farm was of little value, a few acres only of it cleared, and the buildings miserable. It was not in a condition to support the widow in comfort. Such being the state of affairs, William, Abraham and their mother met at the house of James Lee, a neighbor, some time in 1851, to make some arrangement for the mother’s support. James Lee was examined as a witness on behalf of the defendant. I give substantially his account of the interview : “ To the best of my recollection it was in about 1851, I think Abram and William and the mother came to my house for to make a fix about the land — see which one would keep the mother and take the farm. * * Abram wanted William to take the mother, and he objected; he said he had a small family of his own ; he would rather not do it. * * After he objected and they talked a considerable Abram agreed to take-the mother, and take the farm and keep her. * * I told them that they ought to have writings to this effect. They all three just spoke up and said it was not necessary; whatever they agreed upon wmuld be just so. William just stated he could give them a quit-claim deed at any time. Abram agreed to take out timber on the place and help William build his house in Utica.” The witness further said that Abraham took out timber and delivered it in Utica for William ; that shortly after this arrangement Abraham took possession of the farm and held it until he sold it to Irwin, the defendant; that he built a new house, barn and blacksmith’s shop on the farm, and that he supported his mother up to the period of her death. This witness tvas corroborated by Joshua F. Davis, another witness for the defendant, who testified to declarations of William admitting a sale of his interest in the farm to Abraham. We thus have the parties brought face to face; a contract, and a subject-matter .sufficiently described; a possession, evidently under the contract, for a period of twenty-seven years; a sufficient consideration fully paid, and valuable improvements made upon the property. While the terms of the arrangement, and the contract itself are not as clearly defined as could be desired, they are as much so as we have a right to expect from witnesses who are speaking of events of twenty-seven years ago. The outlines are there distinct enough, if some of the filling up has become dimmed with age, the defendant is entitled to the benefit of all the presumptions which lapse of time affords. There was certainly enough to carry the case to the jury, and it was error to withdraw it from their consideration.

The court below required the defendant to elect, whether he would defend under a parol purchase or the Statute of Limitations. By this means, the defendant was deprived of the latter defence. The reason given by the learned judge for this order was: “ To defend under a purely equitable defence, such as a parol purchase is, as a defence inconsistent with a defence under the Statute of Limitations, which is purely legal.” By the new rules in England, inconsistent pleas may be pleaded, if intended bona fide to support different substantial grounds of defence : Chitty 564. The same rule prevails in this state, and is constantly followed in practice. We see no sufficient reason why a party chiming to hold under a parol sale may not set up the statute to protect his title. It might be a great hardship if he could not do so. He may fail to make out his parol title by the death, or the failure of memory on the part of his witnesses. Nor is the statute so inconsistent with an equitable defence as to render it inadmissible. The Statute of Limitations is applied with the same effect in a court of equity as in a court of law: Hamilton v. Hamilton, 6 Harris 21. In relation to lapse of time, equity follows the analogy of the Statute of Limitations: Todd’s Appeal, 12 Harris 429. The remarks of Mr. Justice Strong in Harris v. Richey, 6 P. F. Smith 401, are not in point. There the defendant held possession of the farm, claiming it not adversely, but under a parol contract of sale which he alleged was to be perfected by a deed. Such was not the case here. There was no agreement for a deed. When told by the witness Lee that “they ought to have writings to this’effect,” they all three spoke up and said it wasn’t necessary; whatever they agreed upon, would be just so.” The mere fact, that William stated that he could give them a quit-claim deed at any time, is not important. It was not asked for, and the transaction was completed without it. An adverse holding by Abraham after he went into possession, is not inconsistent with his parol title. It was error for the court to put the defendant to his election.

Judgment reversed, and a venire facias de novo awarded.