Wescott v. Crawford

210 Pa. 256 | Pa. | 1904

Opinion by

Mu. Justice Mestbezat,

The learned counsel for appellant, the defendant below, in their printed brief of argument say: “ In the argument of these cases, we will not waste any of the time of the court in attempting to uphold the writing attached to the affidavits of defense in these cases as a complete contract for the sale of the property therein designated, and which can be enforced as such in law. The theory of the defendant is, that this was a verbal sale of property, followed by possession and valuable improvements, such as takes it out of the statute of frauds.”

This statement of the appellant’s position shows that his claim to the premises for which this action was brought is based on a parol sale followed by possession and valuable improvements, and not on the written contract of February 1,1902, between the Phillips and Mittenzwey estates and Mehring, who subsequently assigned his interest in the agreement to Crawford. It is, tliereiore, clear that under the pleadings in the case the learned trial judge was right in excluding the offers of evidence which are the subject of the first and second assignments and in directing a verdict for the plaintiff, the appellee, which constitutes the third assignment of error.

The courts of common pleas of Allegheny county have a rule which provides, inter alia, as follows: “In all actions of ejectment .... it shall be the duty of the jfiaintiff .... to file in the office of the prothonotary of this court .... a statement containing a description of the land together with the number of acres and the proportion thereof which he claims, and an abstract of title on which he relies for his recovery whether the same be in writing or otherwise, and where the same is a matter of record, a reference thereto. And the defendant shall plead ‘ not guilty,’ .... and at the time of. entering his plea he shall .... file a statement containing an abstract of the title or facts on which he relies for his defense, whether the same be in writing or otherwise; and where the same is a matter of record, a reference thereto, together with a specification of so much of the plaintiff’s title as he denies, and so much thereof as is not denied shall be deemed admitted ; . . . . the case may then be ordered on the issue docket under the rule ; and at the trial the evidence shall be confined to the facts respectively denied by the parties.” This rule was before the court for consideration in Lehman v. Howley, 95 Pa. 295, when Mr. Justice Sterrett, delivering the opinion, said: “ The power of the court to make and enforce such a rule as this cannot be doubted. ... Its provisions are just and reasonable, and their enforcement will greatly expedite and facilitate the administration of justice by eliminating matters about which there is really no dispute, and thus narrowing the controversy to such questions as are actually involved in the case.”

The appellee filed an abstract showing title in her to the premises in dispute. The appellant filed what he denominates an affidavit of defense, but which doubtless was intended for a statement, containing his abstract of title and facts, in which he sets forth that he relies for his defense on the appellee’s abstract and the written agreement of February 1,1902, by which the Phillips and Mifctenz wey estates agreed to sell and convey the premises to Mehring, who assigned his interest in the contract to Crawford. He also avers in his statement substantially the execution of the agreement of February 1, 1902, and its assignment to him ; that he took possession of the premises and made improvements thereon with the knowledge of, and without any objection by, the appellee ; that he offered to pay the appellee the price called for in the agreement but'she refused to make him a deed, and that since the agreement was signed the appellee has not been in a position to make title to the property “ free and clear of incumbrances.”

The appellant concedes, as will be observed, that the agreement of February 1, 1902, is not “ a complete contract for the sale of the property therein designated which can be enforced at law.” He therefore abandons, on this appeal, the written contract between the Phillips and Mittenzwey estates and Meliring as a defense to the action brought by the appellee. In this view of the case the admission in evidence of the contract, which is the subject of the first two assignments, would not have shown title in him nor given him the right to the possession of the property, and hence the action of the court in excluding it did him no harm. It should be noticed in this connection that the agreement and the attached assignment were not offered for the purpose of sustaining “ the theory of the defendant ” that the appellee had sold the property to the appellant by a parol or verbal sale under which the latter now claims the property, but, so far as the record discloses, simply for the purpose of establishing a valid title to the premises in the appellant by the written contract. The appellant’s admission of the invalidity of the agreement of February 1, 1902, fully justified the learned court in excluding the offer.

If, as is now claimed, the title to the premises passed from the appellee to the appellant by a verbal sale, the offer in its entirety was clearly objectionable under the pleadings in the case. Part of the offer might have been competent and relevant if contained in an offer by itself, but if admitted it would not have been sufficient to establish title to the property in the appellant. His statement set up the written contract on which he relied for his defense, and which he averred was followed by possession and valuable improvements made on the premises by him. There is no allegation or averment whatever in the statement that he claimed title by a parol or verbal sale. Hence the rule of the court below prevented the appellant from offering any testimony to show that he held the property by such title. This rule required the appellant to set forth in his statement “ an abstract of the title or facts on which he relies for his defense, whether the same be in writing or otherwise.” What is not alleged or set forth in the abstract or statement, material to the issue, cannot be proved on the trial as a defense to the action. The defendant cannot set up in his statement a written contract as a defense and be permitted to prove on the trial a parol sale or any other defense. The purpose of the rule is to compel the parties to set forth their titles in their respective abstracts and statements so that, on the trial, each may be prepared to assert his own title and attack the disputed part of his adversary’s title. The parties, therefore, must be confined on the trial of the cause to the allegations set out in the abstracts or statements. As the appellant here declared in his pleadings on the written agreement of sale as the foundation of his title, the rule excludes any evidence of a parol sale of the property, and compels the appellant to establish the existence of the written contract set forth in his statement of title. As suggested above, it would not have established title in the appellant if he had been allowed to show, as alleged in his abstract, that he had taken possession and made improvements, if he were not permitted to prove that it was in pursuance of a sale. The pleadings preventing him from proving a parol sale under which he admits he must claim title, if at all, he failed on the trial to show title in himself of the premises as a defense to the action, and the learned court below was right in directing a verdict for the appellee.

The judgment is affirmed.