64 Pa. 414 | Pa. | 1870
The opinion of the court was delivered,
— The first and second assignments of error do not conform to the rule requiring the points to be set out in totidem verbis. The 3d and 4th, however, embrace all the material questions in the cause. The contract for the exchange of farms between Benjamin Moss and Wesley Culver was sufficiently proved. The testimony of Joel R. Culver brought the parties face to face, not only in the fact that he was the authorized channel of communication between them, but by actual presence also. The agreement to exchange was direct, positive, express and unambiguous ; its terms clearly defined, and the subjects of it identified. Wesley Culver was the equitable owner of a tract of 140 acres of
It is true, as has been often said, there is no difference between a parol sale and an exchange in regard to the requisites to take it out of the Statute of Frauds and Perjuries. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much requisites of a parol exchange as of a sale. But there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or dependence on any other subject. The evidence of possession taken of it is therefore confined to the single subject, and if not. taken in a reasonable time, or so as to make it doubtful whether it is attributable to the contract, the parol sale is not taken out of the statute. But an exchange necessarily has a subject on each side which stands related to the other. One is the representative of the other, so much so that the law implies a contract of warranty by the act of exchanging. If therefore the evidence shows a clear, unequivocal, and complete taking possession of one of the subjects of an exchange, by the'party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Evidence of possession that might seem weak and inconclusive in the case of a párol sale, is thus made clear and convincing in the case
Upon the whole ease we discover no error, and the judgment is therefore affirmed.