Parker v. Wells, 6 Whart. 153

Parker v. Wells

6 Whart. 153 | Pa. | 1841

*161The opinion of the court was delivered by

Gibson, C. J.

It is not' pretended that possession was delivered in execution of the contract; but it is argued that the security given for the purchase money was equivalent to actual payment of it, and consequently enough to take the case out of the statute. Though there had been several dicta that nothing but delivery of possession is to be taken for part performance, it had not been specifically decided in Pennsylvania before M‘Kee v. Phillips, (9 Watts, 85,) that payment of purchase money is not so. Yet, notwithstanding several English decisions to the contrary, the opinion of the profession, drawn, perhaps, from some of the best text writers, had marshalled us the way to that conclusion. The English authorities are undoubtedly discrepant; but they justify what Sir. Justice Story seems, in his Equity Jurisprudence, Ch. 18, § 760, to have feared would be considered a too positive assertion, that even in England the old doctrine has been finally overthrown. It is not a little singular that Mr. Roberts, when he wrote his treatise on the Statute of Frauds which was published so late as 1805, considered this old doctrine to be firmly established; and it is not less so that he mentioned Pengall v. Ross, (2 Eq. Ca. Abr. 46,) as the only case which militated against it; for many of the cases relied upon by Mr. Justice Story and Sir Edward Sugden as establishing the contrary, were before that time ; and they are corroborated by a multitude of dicta in later decisions. On the other hand, no American adjudication that I have discovered, contradicts them. Though Mr. Justice Thompson, while delivering the opinion of the court in Wetmore v. Morton, (2 N. Y. Ca. in Error, 109,) repeats, with seeming approbation, Lord Hardwicke’s dictum in Lacon v. Morton, (3 Atk. 4,) that payment of purchase money ha,s always been deemed part performance; it is evident from the fact of payment, in that case, having been followed by possession and improvements, that he had not the question now .before us particularly, in his" view; indeed, it belonged not to the case. Though the English statute of frauds has been adopted in practice, or re-enacted with modifications in almost every state of the union, it is wonderful how little is to be gleaned from the American decisions on this branch of it. On the facts of the case in Davenport v. Mason, (15 Mass. 93,) it is difficult to perceive how a question about part performance could be raised in it, as the money paid could certainly be recovered back without regard to the validity of the original contract ; but there is no dictum in it in support of what I have palled the old doctrine. Bell v. Andrews, (4 Dall. 152,) was an action to recover damages for a breach of the contract, which is not forbidden by our statute; and no more was determined in it than that payment of the consideration might be proved by parol. In the Lessee of Billington v. Welsh, (5 Binney, 130,) it was bar.ely ruled that delivery of possession, and payment of purchase money together, *162were enough to take the contract out of the statute, without a word having been said about the supposed effect of payment alone. In Jones v. Peterman, (3 Serg. & Rawle, 543,) which was the case of a lease, and not a case of payment at all, the question had regard exclusively to the effect of possession at the time of the contract. It is true that the chief justice, as he had done in Smith v. Patton’s lessee, (1 Serg. & Rawle, 84,) mentioned the old distinction between purchase money and earnest, but in a way to leave it doubtful whether he considered either of them to be available. He glanced at the doctrine as it appeared on the surface of the subject; but without a view to the present question, for it was not his habit to decide more than was in the case. The judge who was associated with him proceeded less cautiously, and maintained delivery of possession to be the criterion. It may be said, then, that before the decision of M‘Kee v. Phillips, the question in Pennsylvania was an open one, but swayed towards the conclusion of the puisne judge in Jones v. Peterman, by a preponderating weight of authority, and by the opinions of such men as Chancellor Kent, Mr. Justice Story, Sir Edward Sugden, and Mr. Newland. But independently of authority, there is much reason to distinguish betwixt evidence of payment, and evidence of the more notorious and solemn act of investiture which is less susceptible of perjury,- against which the statute was intended to guard. And there is even more reason for a strict construction of the statute of Pennsylvania, which denies not the injured party an action for damages, than there is for such a construction of the British statute, which declares the contract void, and allows him no remedy whatever. But, in the case before us, the purchase money was not even paid: for though the giving of a negotiable security be equivalent to actual payment, in order to found an action for money paid or received, it is not so to found an equity; ás may be seen in its insufficiency to constitute a purchaser for valuable consideration without notice. The purchaser here might, perhaps, have recovered his money back; but on no ground could actual payment, and much less could a security for it, give him an equitable estate in the soil. The judgment recovered of him before the land was conveyed to him, was consequently not a lien on it; and the fund in court must be decreed to the next oldest judgment creditor who is the opposing claimant.

Decree accordingly.