Bayer v. Walsh

• Decision Date: 07 January 1895
• Docket Number: 272
• Citation: 30 A. 1039,166 Pa. 38
• Parties: Charles F. Bayer, Appellant, v. Patrick Walsh et al
• Court: Pennsylvania Supreme Court

30 A. 1039

166 Pa. 38

Charles F. Bayer, Appellant, v. Patrick Walsh et al

No. 272

Supreme Court of Pennsylvania

January 7, 1895

Argued November 8, 1894

Appeal, No. 272, Oct. T., 1894, by plaintiff, from judgment of C.P. No. 2, Allegheny Co., Oct. T., 1893, No. 383, on a verdict for the plaintiff. Affirmed.

Ejectment for four-fifteenths interest in land. Before MAGEE, J.

In addition to the facts stated in the opinion of the Supreme Court, Alice Walsh testified as follows: "Q. Under the privilege accorded you in that will you may state whether or not you purchased your brother Edward's share in that property? A. I did purchase his share. Q. When did you purchase it? A. Edward's -- on the 31st of October, 1892. Q. On the 31st of October, 1892? A. Yes, sir. Q. Did you pay the money for it on that day? A. I did. Q. How did you pay it? A. How do you mean? Q. Was it in cash? A. I paid the money and got a receipt for it. Q. Was it in cash? A. It was partly gold and partly paper. Q. Was it your own money, Mrs Walsh? A. It was. Q. You didn't get a deed for this property at the time you paid this money, Mrs. Walsh? A. I got a receipt. Q. You afterwards got the deed? A. I got the deed afterwards. Q. Is this the deed that Edward gave you in pursuance of that sale on the 31st of October? A. That is the deed."

Defendant's request for binding instruction was affirmed.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was above instruction, quoting it.

Judgment affirmed.

S. A. Will, for appellant. -- Edward McMullen only acquired this interest in the lot of ground on the death of his father, Oct. 19, 1892, and the pre-existing judgment of plaintiff was not a lien against this interest when it became vested in him, but it became a lien by the execution: Ross & Alsbree's Appeals, 106 Pa. 82; Riland v. Eckert, 23 Pa. 215; Stephen's Exr.'s Ap., 38 Pa. 15; Act of April 22, 1856, P.L. 532; Drake v. Brown, 68 Pa. 223.

A defendant setting up a parol contract to defeat an ejectment on the legal title comes under the same rule as if he were a plaintiff seeking to enforce specific performance: Moore v. Small, 19 Pa. 471; Ballou v. March, 133 Pa. 64; Mellon v. Davison, 123 Pa. 298; Hammer v. McEldowney, 46 Pa. 334; Ferguson v. Staver, 33 Pa. 413; Soles v. Hickman, 20 Pa. 180; Troup v. Troup, 87 Pa. 149; Hart v. Carroll, 85 Pa. 508; Moyer's Ap., 105 Pa. 432; Lord's Ap., 105 Pa. 451; Reno v. Moss, 120 Pa. 49.

Two ingredients are essential to take a parol contract for sale of land out of the statute: (1) Possession under the contract, at time of it and in pursuance thereof. (2) Purchase money paid, or valuable improvements made, to such extent as cannot be compensated in damages: Milliken v. Dravo, 67 Pa. 230; Woods v. Farmere, 10 W. 195; Moore v. Small, 19 Pa. 461; Haslet v. Haslet, 6 W. 464; Christy v. Barnhart, 14 Pa. 260; Greenlee v. Greenlee, 22 Pa. 225; Myers v. Byerly, 45 Pa. 368; Aitkins v. Young, 12 Pa. 15; Frye v. Shepler, 7 Pa. 91; Miller v. Zufall, 113 Pa. 317; Anderson v. Brinser, 129 Pa. 376; Hill v. Meyers, 43 Pa. 173; Eckert v. Eckert, 3 P. & W. 332.

A tenant in common in possession cannot sell by parol to his co-tenant in possession, so as to pass title. Nor will the payment of the purchase money alone take a parol sale out of the statute: Galbreath v. Galbreath, 5 Watts, 146; Hill v. Meyers, 43 Pa. 170; Spencer's Ap., 80 Pa. 37; Chadwick v. Felt, 35 Pa. 305; McCormick's Ap., 57 Pa. 54; Birkbeck v. Kelly, 9 A. R. 313; Myers v. Byerly, 45 Pa. 368; Christy v. Barnhart, 14 Pa. 260.

A contract of parol sale is not executed until delivery of the deed, and the possession and other acts of ownership after that time are to be accounted for by the deed, and cannot be called in in aid of the parol contract: Willey v. Day, 51 Pa. 51.

Whether the evidence is sufficient to take the case out of the statute of frauds is for the court: Troup v. Troup, 87 Pa. 149; Bowers v. Bowers, 95 Pa. 477.

The receipts offered in evidence were wholly insufficient as written evidence of a contract for sale of land, and even far short of certain essentials set forth in the writings offered in evidence in Mellon v. Davidson, 123 Pa. 298; Reno v. Moss, 120 Pa. 49; Hammer v. McEldowney, 46 Pa. 334; Ferguson v. Staver, 33 Pa. 413; Ballou v. March, 133 Pa. 64.

The purposes of the acts of 13th and 27th Elizabeth were "to place parties under a disability to commit fraud, in requiring for the characteristics of an honest act such circumstances as none but an honest intention can be assumed:" Buckley v. Duff & Sons, 114 Pa. 602; Mateer v. Hissim, 3 P. & W. 163; Clark v. Depew, 25 Pa. 509; Kelly's Ap., 77 Pa. 236; Bunn v. Ahl, 29 Pa. 387; McKibben v. Martin, 64 Pa. 352; Kaine v. Weigley, 22 Pa. 179; Rogers v. Hall, 4 Watts, 359; Zerbe v. Miller, 17 Pa. 488; Close v. Benjamin, 9 A. R. 51.

There is no power or direction to sell under the will: Hunt & Lehman's Ap., 105 Pa. 141; Neely v. Grantham, 56 Pa. 442; Roland v. Miller, 100 Pa. 47; Peterson's Ap., 88 Pa. 397; Anewalt's Ap., 42 Pa. 416.

John R. Harbison, Clarence Burleigh with him, for appellee. -- Neither Edward nor Joseph McMullen took any interest in the land as such so devised by the testator: Johnson v. Johnson, 81* Pa. 257.

For the purposes of this case it is not necessary to consider what relations existed between Alice and her brothers before this payment of $800, in pursuance of the will, was made. Any right appellant might have was confessedly acquired after this payment.

Under the will and evidence, Edward parted with personal property, and no deed of conveyance was necessary, however desirable it might be: Mellon v. Reed, 123 Pa. 1; Johnson v. Johnson, 81* Pa. 257.

But, conceding that his interest was real estate, the case at bar is not within the statute of frauds. The option from the father to the daughter being in writing, her acceptance by parol and payment was sufficient, for where an option is given in writing for the purchase of land and it is accepted by parol within the time stipulated, it is not within the statute of frauds: Smith & Fleck's Ap., 69 Pa. 480.

That the purchase by Alice Walsh was bona fide was not denied. No fraud was alleged.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

It is admitted that Patrick McMullen, whom both parties recognize as the common source of title, died seized of the lot in controversy October 19, 1892; and that, by his last will, dated October 1, 1890, and probated October 29, 1892, he devised said lot as follows: "I give and devise my residence on Brownsville avenue, with lot 37 feet front by 120 feet deep, . . . . valued at $3,000, to my daughter, Alice Walsh, and my sons, Edward McMullen and Joseph McMullen, to be divided in shares, thus: Alice $1,200, Edward $800, and Joseph $1,000, to hold to themselves, their heirs and assigns forever; provided, that my daughter, Alice Walsh, may, at her option, within five years of my death, purchase the shares of Edward and Joseph named in this item, price not exceeding the amount bequeathed to each."

This action was brought to recover possession of the alleged four-fifteenths interest of Edward McMullen in the lot devised as aforesaid, which plaintiff claimed to have acquired by purchase at sheriff's sale on an execution issued November 1, 1892, -- on a judgment entered against Edward McMullen in his father's lifetime, -- and levied same day on his interest in said lot. It is conceded that plaintiff had no lien on said interest prior to November 1 1892, when he caused the execution to be issued and levy made. It therefore follows that if the interest of Edward McMullen under his father's will was legally divested before the date of said levy, the plaintiff acquired nothing by virtue of the said sale and sheriff's deed. In substance, that was the defence relied on by the defendants. Their contention was that, after her father's death, Mrs. Walsh determined to exercise the option, given to her by the will, to take her brother Edward's interest in the lot on...