Polka v. May
118 A.2d 154
Pa.
1955
Check Treatment

Opinion by

Mr. Chief Justice Horace Stern,

Defendants, who are husband and wife, are the owners as tenants by the entireties of a house and three adjoining lots of ground in the City of Washington, Pennsylvania. An auctioneer was employed to advertise and sell the property, a public sale was held and plaintiff became the purchaser. A memorandum of the receipt of the down payment and terms of the sale was prepared and signed by the husband defendant and the plaintiff and witnessed by tbe auctioneer, but it was not signed by the wife. Plaintiff bad tbe title examined and made preparation for settlement but defendants refused to accept a tender of tbe balance of tbe purchase money and to deliver a deed for tbe premises. Plaintiff filed a bill in equity for specific performance. Hearing having been bad, tbe court held that be was not entitled to specific performance but only to recover tbe expenses be had incurred. He now appeals from that decision.

It is elementary that an estate by entireties is incapable of dissolution by one of tbe owners without tbe consent of tbe other and that neither spouse alone may alienate bis or her interest in tbe property during tbe other’s lifetime: Thees v. Prudential Insurance Co. of America, 325 Pa. 465, 467, 190 A. 895, 896; Schroeder v. Gulf Refining Co. (No. 1), 300 Pa. 397, 404, 150 A. 663, 665. It is likewise elementary that, because of tbe provisions of tbe statute of frauds, an agreement for tbe sale of land cannot be specifically enforced unless in writing signed by tbe parties to be charged or their agents thereunto lawfully authorized by writing: Llewellyn v. The Sunnyside Coal Co., 242 Pa. 517, 89 A. 575; Simon v. Beeck, 300 Pa. 334, 340, 150 A. 640, 642.

Plaintiff seeks to avoid tbe effect of tbe statute by contending that it should not be held to apply to tbe purchase of a property at a public auction sale. Both tbe auctioneer (called as plaintiff’s witness) and tbe husband defendant testified that tbe property was not knocked down to plaintiff at tbe auction on bis bid of $8,000, but that tbe auctioneer, tbe plaintiff and tbe husband conferred privately and plaintiff then agreed to pay $8,100 which was tbe least tbe husband would accept. However, tbe chancellor found as a fact that tbe property was knocked down to plaintiff at tbe sale on Ms bid of $8,000, and that Ms subsequent agreement to pay an additional $100 was a voluntary act on bis part. In view of that finding of tbe court tbe transaction must accordingly be regarded as an auction sale and therefore governed by tbe law applicable to such sales. Unfortunately for plaintiff, however, this does not afford him any relief, because it is universally held that sales by auction are within tbe provisions of tbe statute of frauds to tbe same extent as any other sale or contract of sale relating to land: 37 C.J.S. 17, §122; Kurtz v. Cummings, 24 Pa. 35; Bush v. Breinig, 113 Pa. 310, 315, 6 A. 86, 87; cf. Herbert Estate, 356 Pa. 107, 111, 112, 51 A. 2d 753, 755, 756. Where, therefore, as in Pennsylvania, tbe statute expressly requires that a contract for tbe sale of lands be signed by the party to be charged or bis agent duly authorized in writing, an auctioneer’s memorandum will be binding upon a party to tbe contract only if be has been authorized in writing to make it: 5 Am. Jur. 469, §33.

Plaintiff urges, as a further contention, that tbe statute of frauds should not be applied in tbe present case because tbe chancellor found that there was sufficient evidence to support inferences that tbe wife bad knowledge of tbe proposed sale of tbe property, that she knew that tbe auction was being advertised in tbe local newspapers over notices bearing tbe names both of herself and her husband, that she knew of tbe employment of tbe auctioneer, that she was on the premises at tbe time of tbe sale, that prior to tbe sale she showed tbe premises to tbe plaintiff, that although she knew that her husband was going with the auctioneer and tbe plaintiff to an attorney’s office to prepare the legal papers incident to tbe sale she did not attempt in any way to interfere. Even assuming, however, all these “inferences” to be facts, (although there would seem to be strong evidence to tbe contrary), they never-. theless do not, either individually or collectively, permit of the entry of a decree of specific performance against the wife on the ground of estoppel, since the principle of estoppel may not be invoked against the operation of the statute of frauds: Miranville v. Silverthorn, 48 Pa. 147; Schwoerdfeger v. Kelly, 223 Pa. 631, 72 A. 1056; Mott v. Kaldes, 288 Pa. 264, 274, 275, 135 A. 764, 767; Peterson v. Chandler, 362 Pa. 102, 66 A. 2d 284. In the last named case it was said (p. 105, A. p. 285) : “In Saler v. Lessy, 76 Pa. Superior Ct. 15, it was stated (p. 19) : £It has long been the law of the Commonwealth, that specific performance of an agreement to sell real estate will not be decreed against the vendor, who is a married man whose wife refuses to join in the conveyance so as to bar her dower ... If not so bound, no theory of estoppel could be set up as an inducement to a chancellor to enter a decree compelling her to convey.’ See also Biesz’s Appeal, 73 Pa. 485; Burk’s Appeal, 75 Pa. 141. A fortiori, a theory of estoppel may not be set up to divest the wife’s interest where, as here, the property is owned by the entire-ties.” Nor does any general agency arise from the marital relationship or any presumption flow therefrom that either spouse has authority to convey real estate held by the entireties without the other’s joinder therein (Schweitzer v. Evans, 360 Pa. 552, 557, 63 A. 2d 39, 41) and therefore it cannot be inferred, in the absence of any affirmative evidence to establish the fact, that the husband in this case acted not only in his own right but also as agent for his wife.

Under the interpretation that has been given to our statute of frauds a recovery of damages may be had for non-performance of a parol agreement for the sale of land, the measure of such damages being the money that was paid on account of the purchase and the expenses incurred on the faith of the contract. Accord ingly the court entered judgment for plaintiff in the sum of $222.90, which was made up of an item of $150 for attorney’s fees for searching the title and preparing the legal papers, and an item of interest lost by plaintiff on his bank deposits which he had transferred to his checking account in preparation for the settlement; the court also ordered defendants to pay the costs of the suit. Plaintiff contends that he should have been allowed an additional recovery of $500 for counsel fees incurred in connection with the present proceedings, but there is no provision in our law for the allowance to a party of compensation for his expenses in retaining counsel to advise and to try his case, or to warrant the imposition as court costs of the fees of counsel: Winton’s Appeal, 87 Pa. 77; Smith v. Equitable Trust Co. (No. 1), 215 Pa. 413, 417, 64 A. 591, 592; Moats v. Thompson et al., Exrs., 283 Pa. 313, 322, 129 A. 105, 108; Kaufmann v. Kirker, 22 Pa. Superior Ct. 201; Hackett and Hackett v. Hackett, 104 Pa. Superior Ct. 353, 357, 159 A. 226, 227; Commonwealth v. Pennsylvania Loan Corporation, 127 Pa. Superior Ct. 253, 256, 193 A. 141, 142.

The order and judgment of the court below are affirmed, defendants to pay the costs.