51 A.2d 708 | Pa. | 1947
Harry E. Moyer, Birchard J. Moyer, Elizabeth C. Callahan and Rahba A. Hassinger, plaintiffs, filed this bill in equity against Edward Moyer, Haven J. Moyer and Virgie Mabel Moyer, defendants, to have a trust declared as to certain real estate situated in the Borough of Middleburg, Snyder County, and also to obtain a conveyance of that property. Plaintiffs base their prayer for equitable relief on an alleged oral agreement of Edward Moyer, one of defendants, to reconvey the real estate to Charles Moyer, or his children, plaintiffs, upon the payment of $2,400, plus 5% interest, per annum. In their answers, defendants aver that no such agreement was made. Upon bill, answer and replication, the case was tried before the court en banc. A decree having been entered refusing the relief prayed for,1 plaintiffs took this appeal.
The facts are as follows: Plaintiffs are the children of Charles W. Moyer, who died on July 26, 1944, intestate; and Edward Moyer, one of defendants, is the latter's brother. In 1902 Charles had purchased two lots or tracts of land in Middleburg and during the remainder of his life he lived in a house erected thereon. In January, 1940, he encountered financial reverses, and *186 the First National Bank of Swineford caused a writ of fieri facias to be issued against his real estate, and it was thereafter advertised for sale by the sheriff. Birchard J. Moyer, one of plaintiffs, in the company of his attorney, had a meeting with Edward, and they persuaded him to buy the property at the sale, in order that Charles would not be evicted from his home. Edward purchased the real estate at the sheriff's sale for $2,400, paid for it with his own money and received a deed in his own name. From the time of the sale until his death four years later, Charles continued to occupy the premises and to pay the taxes, fire insurance and the expenses of minor repairs. Also in that period, he paid a total of $150 to Edward, who asserts that this sum was in payment of rent. No fixed sum as rent was ever discussed or demanded. Edward testified that Charles never offered to purchase the property, and that following the latter's death, he, Edward, offered to sell to his nephew, Birchard J. Moyer, but that he refused to buy. One of plaintiffs, Elizabeth C. Callahan, and her husband, are the present occupants of the premises and have been in possession since sometime prior to the death of her father, Charles. Edward sold the property on February 21, 1945, for $3,000 to the other defendants, Haven J. Moyer and Virgie Mabel Moyer, and gave them a deed, which they duly recorded. Thereafter, these new owners demanded possession, but plaintiffs refused to recognize their title and filed this bill of complaint.
It is argued that the learned court below erred in failing to grant the relief sought, basing their contention on the existence of an alleged confidential relationship between Edward and Charles at the time of the sheriff's sale, and a claim that a resulting trust was created at that time.
The mere fact that Charles and Edward were brothers does not imply that a confidential relationship existed between them. Kinship alone does not prove the existence of such a relation; it is a question of fact to be *187
established by the evidence: Null's estate,
It was said in Watkins and Miller v. Watkins,
When a parol contract of sale of real estate, under these circumstances, is attempted to be set up, the evidence must be direct, positive, express and unambiguous. Even if it could be said that such evidence had been adduced in the instant case, of which fact we have our very serious doubts, such oral contract would fall under the operation of the Statute of Frauds. Merely because Charles may have continued to occupy the premises after the alleged parol agreement was entered into, may have paid the sum of $150 to Edward on account of the purchase price provided by that contract, as contended by *188 plaintiffs, and may also have expended moneys for minor repairs to the property, taxes, etc., do not remove the contract from the operation of the statute. Such possession by Charles was not referable to the parol agreement, and the moneys he expended, if paid as claimed by plaintiffs, may be recovered in a proper proceeding.
In Brotman v. Brotman,
There is nothing in this record to indicate that to hold the parol agreement invalid would be inequitable or unjust. Since we have deemed it advisable to dispose of the case on this ground, it would but needlessly lengthen this opinion to consider whether the terms of the oral contract are too vague and uncertain to bind the parties, or whether the conduct of Charles and appellants in not tendering the purchase price within a reasonable time would be sufficient justification for Edward to rescind the contract.
Decree affirmed.
