Eberly v. Lehman

• Decision Date: 04 October 1882
• Citation: 100 Pa. 542
• Parties: Eberly <I>versus</I> Lehman, et al.
• Court: Pennsylvania Supreme Court

100 Pa. 542

Eberly versus Lehman, et al.

Supreme Court of Pennsylvania.

May 10, 1882.

October 4, 1882.

May 10th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Cumberland county: Of July Term 1882, No. 22 H. Newsham (with him W. F. Sadler), for plaintiff in error. The possession of the land by Nerons, with the consent of Mower, and the expenditure of money, and the contraction of a debt for lumber to build the house, gave such an equitable estate to Nerons as would entitle him to specific performance at any time after he came into possession, and the lien entered by Eberly would bind that interest to the extent of the debt, subject to the equities of Mower, that could be enforced at any time. Payment of the purchase money by Nerons was not essential under these circumstances: Pugh v. Good, 3 W. & S. 56; Jones v. Peterman, 3 S. & R. 549; McGibbeny v. Burmaster, 53 Pa. St. 332; Hill v. Meyers, 43 Pa. St. 172. Nerons acquired an equitable estate under his contract: Hart v. Carroll 4 Norris 512, and to this estate Eberly's lien attached: Carkhuff v. Anderson, 3 Binney 11; Lyon v. McGuffey, 4 Barr 126.

S. Hepburn, Jr., for defendants in error.—Nerons abandoned his contract. He neither paid nor tendered any purchase money, but attorned to Lehman, first paying him rent and then surrendering possession to him. It is well settled in this state, since Moore v. Small, 7 Harris 461, that every contract for the sale of land is within the statute of frauds, except where there has been such part performance as cannot be reasonably compensated in damages. The improvements in this instance were not of such a character: Dougan v. Blocher, 12 Harris 28; Hill v. Meyers, 7 Wr. 170; Ballard v. Ward, 8 Nor. 358. Pugh v. Good, and Jones v. Peterman, cited by plaintiff in error, were overruled, in Moore v. Small, supra. Without part payment of purchase money, there can be no "part performance" by the vendee, and for this reason no case can be found of a recovery without such part payment.

Mr. Justice MERCUR delivered the opinion of the court October 4th, 1882.

Although the earlier decisions do not harmonize with each other yet it is now undoubtedly held, that all parol contracts for the sale of lands are not invalidated by the statute of frauds. Where possession has been taken in pursuance of the contract, and there has been such part performance that the purchaser cannot reasonably be compensated in damages, the case is taken out of the statute. Possession and payment of purchase money only are not sufficient, for the vendee may be compensated in damages; but when to possession is added permanent improvements of considerable value which cannot be thus reasonably compensated, the rule is held otherwise. This constitutes such a part performance as to take the case out of the statute: McGibbeny v. Burmaster, 3 P. F. Smith 332.

This action is for a lot which the evidence shows Nerons bought of Mower by a parol contract. He took possession in pursuance of his purchase, and made valuable improvements on the lot. The plaintiff claims as a purchaser at sheriff's sale on a judgment entered against Nerons after the improvements were made; and the defendant claims by deed from Mower some time thereafter. The controlling question is whether Nerons had such an interest in the lot as to be bound by the judgment against him? The learned judge thought he had not, and ordered a compulsory nonsuit. If we correctly understand the court, this conclusion was based solely on the fact that Nerons had not paid any part of the consideration money to Mower. In the opinion filed, inter alia, it said, "it may be assumed that the contract for the sale of the land by Mower to Nerons has been fully proved by the testimony of Nerons, the vendee, and the deposition of Mower, the vendor. The land, according to their testimony, was clearly designated and described, the consideration agreed upon and possession delivered to the vendee. The vendee erected a building on the land, the materials for which were furnished by Eberly, who entered a mechanic's lien against the building, making Nerons alone the defendant therein." In the continued narative it is stated that the mechanic's lien was not filed until a year after the building was erected: but the decision does not appear to rest on the ground that the lien was not filed in time. It declares that at no time had Nerons any estate in the land, and therefore the judgment which he confessed on the scire facias on the mechanic's claim attached to nothing.

This view does not give due effect to the equity in Nerons arising from his expenditure, which more than doubled the permanent value of the land: Wack v. Sorber, 2 Whart. 387. When a party has induced another on the faith of his promise,...