83 Pa. 24 | Pa. | 1877
delivered the opinion of the court, January 2d 1877.
The third error was improvidently assigned. By a clerical error in copying the charge, the court were made to say: “If the defendant had gone into possession of the fifty acre tract before the parol contract, if there was such a contract, and was in possession of it, severally and independent of the contract, then this case would be taken out of the Statute of Frauds.” Of course no such instruction could have fallen from the lips of a judge so accurate
This contest has arisen out of a parol contract alleged to have been made betweén a father and a son. In such a contest, it was said in Ackerman v. Fisher, 7 P. F. Smith 457, clearer and stronger evidence is required of the father’s intention to part with the ownership of property, than is required in cases of parol contracts between strangers in blood. There are' obvious reasons for this distinction. The circumstances of families are subject to constant change. The pecuniary relations between a father and his several children may shift not only from year to year, but from month to month. The promise to give an estate to a child- may have been founded on reasons involving anticipations never realized or plans never executed. Financial embarrassments, an increase in the number of the members of his family, the intervention of new duties, or the misconduct of the child may justify a change in the father’s purpose. In any such case there would be manifest injustice in imputing to loose declarations of intention the binding efficacy of a contract. “ Nothing is more common,” Judge STRONG, said in Ackerman v. Fisher, “ than that a father speaks of a farm on which he has placed a son, as the son’s farm, or a house in which he permits his son to live, as the son’s house. It is every day’s occurrence that a father speaks of having given a lot óf ground to a son, when it ivas plain there was no intention to transfer the ownership. And such language is not confined to parol gifts. When a father says, I sold such a piece of real estate to my son, he generally means no more than that he agreed the son might have it for a consideration.” The rule is settled, therefore, that' as between father and child, the evidence of a gift or sale must be direct, positive, express and unambiguous; that its terms must be clearly defined, and that all the acts necessary to its validity must have special reference to it and nothing else: Poorman v. Kilgore, 2 Casey 365. In Moore v. Small, 7 Harris 461, it was ruled that to have effect the contract must have .been so far executed as to make it unjust to rescind it, and must be so definite in its terms as to enable á court of equity to decree its. specific performance. In that case a son set up a parol gift from his father, and the improvements the son had made, were relied on to take the contract out of the operation of the Statute of Frauds. It was said that the son, like any other purchaser, must prove the contract; must prove that the land was clearly designated; that open, notorious and exclusive possession was taken and maintained under and in pursuance' of the contract; and that the improvements which constituted the consideration were made on the faith of the promised conveyance.
By. the other evidence given on behalf of the defendant, his claim is stripped of 'every semblance of plausibility. So lately as 1867 or 1868, William Ashbaugh told David Beck that “ he would give John the fifty acres, providing he did not do as some of the rest of the heirs, go against him.” It is clear from the testimony of Mr. Beck and Michael Sproul that the defendant worked the fifty acres as well as the rest of the farm, after he moved into the new house, as he had done before. Beck said: “ William Ashbaugh told me John was living there to crop for him over the whole farm. He cropped both pieces for the old man.” Sproul said: “I know that John did his farming up till and before that time (1869). He gave the old man two-thirds of what he raised on the whole farm. ’ ’ James Zill testified that four or five years before he was examined, he helped to build fences on the fifty acre piece, and William Ashbaugh paid him. With the exception of the amount with which William Linden charged him for twenty-five peach trees, there was no evidence of the expenditure by the defendant of a single dollar for the improvement of the property. For the peach trees he bought and for the labor he performed he could be amply compensated in damages. It is certain that in view of the Statute of Frauds, no contract has been established under which he can assert title to this property, for the case is destitute of adequate evidence of an existing consideration, of an adjustment of the boundaries of the land, and of the change of possession which the law requires. The first point presented by the plaintiffs covered the whole ground of this controversy, and ought to have been affirmed.
Judgment reversed, and venire facias de novo awarded.