Shirley v. Shirley

59 Pa. 267 | Pa. | 1868

The opinion of the court was delivered, November 16th 1868, by

Thompson, C. J.

The instrument claimed by the plaintiffs in this ejectment to he an executed conveyance by Thomas Shirley, Sr., to them of the land in controversy, during life, has neither form nor substance to give rise even to a suspicion that such was intended to be its effect. It is, in our opinion, simply a contract by which the latter were to farm the land, and furnish Thomas Shirley Sr. and wife with a comfortable maintenance on it during their lives, at their own house on it, and to provide feed, fodder and pasture for his cattle; and by way of compensation, they to have what they could make off it from year to year, over and above this charge, paying taxes, and the debts of their father due at the date of the agreement.

There is not a word in it indicative of, or by the force of which a present assurance is to be deduced; while, on the other hand, the parties have denominated it an “article of agreement;” and it contains covenants to be performed by both parties in future, and is signed by both. On the part of Thomas Shirley, Sr., it is set forth that he “agrees to give” to the parties of the second part, “ the farm I now live on, to farm. Likewise, the horses and farming utensils, to enable them to carry on farming said farm, for and during my natural life.” This was an agreement to be performed in futuro in relation to the farm, as certainly as it was in relation to the horses and farming utensils; and that the latter were not given absolutely no one will contend.

Indeed, the understanding in regard to these, the parties have clearly shown by their supplemental agreement of the 1st of September 1854, in which the original article was modified so that Thomas Shirley Sr. was to give to his sons “ the use of his horses only when it suits him.” The whole thing was a family arrangement. The father to let his sons work his farm, and use his personal property, and they to maintain him and his wife, and take care of his cattle, &c. Were this a contract between strangers, no one would think of calling it an executed contract. It is only because of a supposed intention to yield something to his sons that it is suspected to possess that character; but that is not sufficient as the foundation for a judicial determination upon the rights of the parties. The intent must appear in the instrument; but such intent does not so appear here. The cases cited of Williams v. Bentley, 3 Casey 294; Ogden v. Brown, 9 Id. 247; Grover v. McAnulty, 3 Wright 473; and Bortz v. Bortz, 12 Id. 382, give no countenance to the interpretation contended for in this contract; they all strongly support a different conclusion. There is no present consideration to support a present grant in the instrument; and neither a habendum nor tenendum, or equivalent expressions, to be found in it.

Strong, J., in his opinion in Ogden v. Brown, supra, uses a remark to elucidate the intent of the parties, which may with great propriety be used here for a like purpose. “ The purpose of the instrument,” said he, “was so evidently to make provision for Mrs. Oranmer while she should live, it can hardly be presumed her intention was to part with her interest irrevocably without effectuating her purpose;” meaning by an absolute conveyance of it. The terms there were much more indicative of an intention to convey, than any in the instrument we are considering. They were, that she had “granted, bargained and conveyed,” yet the manifest purpose of the instrument, together with the nature of the covenants in it, carried the construction that it was but an executory agreement.

Courts, in my opinion, should be slow to give the effect of absolute conveyances to instruments for provisions made between parents and children, of the kind of which we are speaking, unless the intention be very clear. Such agreements are usually fruitful sources of strife, litigation, and very often of great wrong to aged and feeble parents; and when^held to be absolute conveyances, it puts them entirely at the mercy sometimes of unwilling, and often unkind offspring.

There is no security in a conveyance for such purposes, unless it be most distinctly and expressly so made to appear on its face: Green v. Heister, 12 Wright 96; Kouffelt v. Bowers, 7 S. & R. 64. If this were to be held a conveyance of a life estate to the sons as grantees, the grantor would be at their mercy, with no security for maintenance but their personal covenant. They might sell the estate, or it might be sold for their debts, and their parents be made to become a public charge, and the object of it entirely defeated. Happily, as already said, there are no words, provisions or intention, apparent in the agreement, requiring such a conclusion. It is clearly executory, and was properly so held by the court below. This assignment of error is, therefore, not sustained.

This being the state of the plaintiffs’ title, they must rely on equitable principles to arrive at specific performance. They must do equity, or show that they have at all times been ready to do it; that they have been “ready, prompt and eager,” to perform their part of the contract.

It is apparent from the testimony, that John Shirley, one of the plaintiffs, paid little if any attention to its performance. He went West within two or three years, to follow his occupation .of carpenter, and was but little on the farm for several years; and then he got back into it by unlawful means, whilst another man was occupying as tenant of his father. It also appears that Thomas left, against the remonstrance of a sister and brother-in-law, and of his father, if the testimony be true. But a question is raised on an offer by the plaintiffs to prove, that when Thomas Shirley Jr. left the place in the spring of 1860, there was an understanding between him and his father, that his absence was not to be of long continuance, and that “he would return when his father would become reconciled; and that Thomas at that time, in presence of his father, refused to give up his contract, but claimed possession of the land under it.”

This was such an extraordinary proposition, that it might have been the shortest way to dispose of it to have admitted it. The idea that two men so much dissatisfied with each other, as to be obliged to separate, and yet agreeing to come together when one of them should become more placable, is certainly somewhat difficult to believe. Moreover, the claiming possession, while the alleged agreement rested upon its temporary surrender, was at best also an extraordinary proposition. I think testimony just to the effect of the offer, would not have been very hard for a jury to dispose of. But our duty is with the offer — to determine whether it was improperly rejected or not.

We must treat it as containing facts which could have been proved. Would they have availed anything of themselves, if admitted ? There was no offer to follow them with anything else. What equity would there have arisen in favor of the plaintiffs if these facts had been proved, without proof that Thomas did come back according to agreement and offer performance ? I cannot see any. He left in the spring of 1860, and did not return, nor offer to return, until suit brought. John’s clandestine entry would not avail to supply this requirement on his part. Indeed, that has been determined to be illegal by the record of the suit against him by his brother.

I would say, therefore, that if this secondary agreement had any virtue in it, it should have been shown to have been complied with. This not having been done, or offered to be shown, the testimony would have been without benefit to the plaintiffs, and the error, if any, in rejecting it, harmless.

But it seems to us the ground assumed by the learned judge for rejecting the offer was impregnable. It was not proposed to visit the defendant with notice of this agreement. lie knew of the agreement of 1852, and relied on the failure of performance of it by the plaintiffs, to justify him in purchasing from his father. But he was not to be affected by secret agreements or equities of which he had no knowledge and no reason to suspect. On this ground the rejection was undoubtedly proper.

This was an equitable ejectment, and its purpose was to enforce the specific performance of the contract in question by enabling the plaintiffs to get possession, for the purpose of fulfilling it. It was, therefore, a case where a want of equity on part of the plaintiffs was fatal, whatever might be the result in an action in disaffirmance of it. -Eor these reasons, what John said and did when •about leaving the place, was proper to be admitted in evidence, so far as he was concerned. Indeed, it is always competent to prove what a party says against his interest, about the matter in controversy. There was, therefore, no error in the admission of such testimony.

The argument for the plaintiff in error, it seems to us, was to some extent outside of the real point of controversy. It was not a rescission of the contract between Thomas Shirley Sr. and his sons, which was mainly involved in the contest, but whether it could, under the circumstances, be enforced against the defendant; and that, as suggested, depended on the equities of the case, of which we have sufficiently spoken.

We think the case was well tried, and as none of the errors assigned have been sustained, the judgment must be affirmed.