195 A. 629 | Pa. Super. Ct. | 1937
Argued September 29, 1937. This is an action in ejectment in which the defendants have appealed from a judgment entered on the pleadings for want of a sufficient answer.
James M. Richardson and Mary, his wife, became the owners by entirety of the land in question, by deed, dated June 20, 1921. James Richardson died March 17, 1933 and his wife died, intestate, on July 19, 1935, without having remarried, leaving to survive her two sons, plaintiffs herein, who filed a declaration and abstract of title showing their legal title as heirs-at-law of their deceased mother. Defendants' answer avers that James M. Richardson and his wife, together with *237 defendants, lived on the premises in question for seven years before his death; that after his death, his wife and defendants continued to reside on the premises. The answer further avers that Mary Richardson, during the last several years of her life, was paralyzed in both legs and was without means of support with the exception of the premises in question; and that subsequent to the death of James M. Richardson, plaintiffs entered into an oral agreement with defendants whereby they promised that if defendants would put forth whatever sums were necessary for the maintenance and care of plaintiffs' mother, they would give defendants, upon her death, the house which she owned; and that they would reimburse defendants for any sums necessary for the upkeep of the property. It was also averred that on various occasions the parties discussed the payment of bills for repairs, taxes, insurance, sickroom equipment, doctor's services, and the mother's funeral expenses; that on each occasion the plaintiffs repeated their request that defendants pay the bills and they would be reimbursed by them; and that in pursuance of this arrangement, defendants kept, boarded and nursed Mary Richardson until her death and expended $1,458.77 — of which sum, $189.53 was for expenses incident to the upkeep of the property — and were reimbursed in the amount of $764.77, being moneys received from cash in the bank and the proceeds from three insurance policies. Defendants assert that they have been in possession of the premises since the death of plaintiffs' mother; that no rent has been paid by them; and that no demand for possession or rent was made until October, 1936, after they had demanded payment of the balance of moneys expended by them.
"In order to take a parol contract for the sale of its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the *238
lands out of the operation of the Statute of Frauds, boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust": Hart v. Caroll,
In addition to the obstacles, we have above detailed, the defendants are faced with a factual situation unlike any of the cases that have been referred to us, or that our independent search has revealed. In all of the cases, the alleged agreement was made with the real owner, while in the present case it was with the two sons, who at the time of the agreement had no interest whatever in the premises. It is only by virtue of the mother's intestacy that plaintiffs have the legal title. When the agreement was made, plaintiffs had no interest in the land, which defendants must have known, and their performance of the services and the expenditures of the moneys could have been based upon no other ground than the personal assurance of plaintiffs to reimburse them. In Morrish v. Price, supra, the facts are almost identical with defendants' averments in the case at bar, and it was there held that the alleged oral agreement was not sufficient to avoid the effect of the Statute of Frauds. Tetlow's Estate,
Defendants also raise the question whether a rule for judgment on the pleadings, being in the nature of a demurrer, takes the contract out of the Statute of Frauds by admitting the parol contract. Plaintiffs assigned as one of the reasons, in their rule for judgment for want of a sufficient answer, that the alleged oral agreement was not admissible as a defense to the action under the Statute of Frauds of March 21, 1772, 1 Sm. Law, 389,
Simmons's Estate,
Judgment affirmed.