121 Pa. 550 | Pa. | 1888
Opinion,
The defendant claimed title to the land in dispute under a verbal contract of sale for the premises, alleging that she was to pay $275 to the plaintiff as the consideration money of the purchase. ' To prove performance of the contract on her part, she gave in evidence a number of receipts for different sums of money signed by the plaintiff. The first three of them, given in 1866, 1868 and 1871, respectively for $70, $12 and $60, purported to be on account of purchase money of a house and lot, which, for the present at least, may be conceded to be the premises in question. The remaining twelve of them, all purport to be for rent for what under all the evidence must be conceded to be the same premises.
These writings are necessarily and materially inconsistent with each other upon their face. Those which relate to purchase money cover the time from November 7, 1866, to July 12, 1871. Those which relate to rent cover the time from March 1, 1872, to October 1, 1874. The first three tend to prove a sale, the last twelve tend to prove a renting. They
We think there was error in tbis action of the court below, and for various reasons. In tbe first place tbe plaintiff’s offer of proof was in accord with the- written receipts which were given in evidence by the defendant, while her own, merely oral testimony, was in contradiction of them. Tbe learned court seems to have held tbat tbe original contract for tbe sale of tbe land by tbe plaintiff to tbe defendant, was a written contract established by, or consisting of, tbe first, or first three, receipts; and, having adopted tbis theory it was applied throughout, regardless of the fact tbat tbe remaining twelve receipts were also between^ the same parties, for tbe same premises, and entirely hostile to tbe theory of a sale, at least from tbe time tbe first of them was given. On tbe writings then, considered by themselves alone, and all being of equal grade as media of proof, tbe defendant’s case was contradictory of itself, and there was quite as high authority upon tbe written proofs alone for holding that, even if tbe contract was originally a sale, it became by the subsequent written agreement of tbe parties, changed to a contract of renting. These receipts for rent were as much a part of the proof of tbe de
But we think there was also error in applying the theory that because a complete title had vested, a subsequent rescission could not be proved by parol. It must be observed that the defendant’s title, which was really in parol in its origin, had never become perfected by performance, and therefore was only an equity depending upon the amount of purchase money paid. While it remained in this condition, uncompleted by full payment, it was clearly, under the authorities, in an action between the original parties, subject to proof of subsequent rescission by parol. Thus, in Boyce v. McCulloch, 3 W. & S. 429, it was distinctly held that a written contract for the purchase and sale of land, may be rescinded by a subsequent parol agreement of the parties. It is true, this was ruled in an action by the vendee against subsequent purchasers from the vendor, without notice of the articles; but it was a case of express written contract of sale, followed by possession of part of the land; and, in the course of the opinion by Kennedy, J., the general doctrine applicable was thus expressed: “ No doubt if evidence had been given showing that the articles of agreement had been canceled, or actually given up for that purpose, or such possession as Boyce had, had been surrendered in pursuance of the agreement to rescind the articles, it would have made the case perfectly clear for the defendants; because it might have been considered, even at law, as amounting to an actual rescission of the agreement contained in the articles.” In the present case, while the defendant did not go out of the physical possession of the premises, she certainly
In Dayton v. Newman, 19 Pa. 198, we said: “An equity under written articles may be released by parol; ” and, in Garver v. McNulty, 39 Pa. 485, Thompson, J., said: “ No doubt but that unexecuted articles for the sale and purchase of land may be rescinded by parol, so that in equity no specific execution of them could be enforced or a recovery be had in ejectment.” Judge Thompson said further, referring to the facts of that case, “ But when the title has passed, a different rule necessarily exists; ” and it was this which induced the court below to exclude the plaintiff’s offer of testimony in supposed conformity with the decision above quoted. An examination of that case however shows that its circumstances were entirely different from those of the present. The title of the vendee in that case was acquired under an instrument of writing which we held to be an absolute conveyance, completely executed, of the grantor’s title, with the same effect in all respects as if it had been in form, as it was in legal effect, an ordinary deed in fee simple. Of course, upon this view of the case, the title' having entirely passed, it could not be revested in the grantor except in conformity with the statute of frauds, and this was expressly stated in the opinion. The doctrine that unexecuted articles, although in writing, might be rescinded by parol was recognized and affirmed.
So too, in Bowser v. Cravena, 56 Pa. 132, there was a written contract of sale which, however informal in its language, was in legal effect a present actual conveyance of the land in question, followed by a long continued possession and improvements by the vendee. We held, repeating what had been held in the same case, in 4 Pa. 259, that the title passed by this instrument and therefore could not be divested or aliened except by a contract in writing. Both opinions were delivered by the same judge, Thompson, J., and in both he recognized the difference between an actual conveyance of the title by writing, and unexecuted, articles or a mere parol sale. The
To sum up the whole matter, the original agreement was a verbal contract for the sale of the premises for $275. In part performance, the defendant proved that she had paid, within the five years following, $142 on account of the purchase money, and gave written receipts in evidence iu support of her assertion; and she further gave in evidence written receipts
Judgment reversed and venire de novo awarded.