Graft v. Loucks

• Decision Date: 05 January 1891
• Docket Number: 92
• Citation: 21 A. 203,138 Pa. 453
• Parties: JACOB L. GRAFT v. PETER S. LOUCKS
• Court: Pennsylvania Supreme Court

21 A. 203

138 Pa. 453

JACOB L. GRAFT v. PETER S. LOUCKS

No. 92

Supreme Court of Pennsylvania

January 5, 1891

Argued October 9, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY.

No. 92 October Term 1890, Sup. Ct.; court below, No. 67 Equity Docket, C.P.

On March 21, 1876, Jacob L. Graft filed a bill in equity against Peter S. Loucks, praying for a decree directing the specific performance of an alleged parol agreement of the defendant to sell and convey to the plaintiff a certain lot of ground in Scottdale, Westmoreland county, containing one fourth of an acre. On April 27, 1881, in obedience to a rule to plead answer or demur, the defendant filed his answer to the bill and on May 2, 1881, the plaintiff joined issue.

On October 16, 1882, the cause was referred by the court to Mr John B. Head as examiner and master, who on November 10, 1884, filed his report, finding, in substance:

(1) That in the fall of 1872 a contract was entered into between the plaintiff and the defendant for the purchase and sale of the lot of ground described in the bill, for the consideration of $150; but that (2), upon the question whether said purchase money had been paid, the testimony was too evenly balanced to enable a chancellor to be clearly satisfied of the fact of such payment; and (3) that evidence of such exclusive, notorious and continuous possession of the land by the vendee, as the law was willing to accept as a partial substitute for a written contract or conveyance, was wholly wanting. The master accordingly recommended that the bill be dismissed at the cost of the plaintiff.

The testimony before the master is sufficiently stated in the opinion of the Supreme Court, and in the opinion of the court below upon exceptions to the report, WHITE, P.J., 40th district, specially presiding, in part as follows:

A careful scrutiny of all the testimony leads us to the same conclusion as the master, as to the contract, but to a different one as to the possession and the payment of the purchase money. We may now proceed to recall the testimony supporting our conclusion. The master has said, that there was a contract is not disputed. By reference to the defendant's answer and testimony, it will be observed he denies, quite emphatically, that there ever was a specific contract of sale, averring that propositions of sale only were made, which were never accepted by the plaintiff. While agreeing with the master that a contract was made, we find the testimony of actual payment and possession, under the contract, quite as clear and satisfactory as that which establishes the contract.

The plaintiff, himself, testifies substantially that the agreement was made on the ground in August, 1872, for $150, the money to be paid when the deed was delivered. The boundaries were then shown. They met again on the lot in April, 1873, when the defendant showed him where to put the fences and measured the boundaries with a tape line; George Graft, Isaac and George Taylor being present. It appears further, that the plaintiff before this had a contract with the defendant and his brother Jacob S. Loucks, for making about 400,000 bricks, which had not been settled for before the lot purchase. There was a settlement for these bricks at the defendant's house, in April, 1873, other parties being present. There is no doubt that at this settlement there was more money in the defendant's hands, owing the plaintiff, than would pay for the lot, and it is equally clear it is in his hands yet. The plaintiff had also bought another lot from Jacob S. Loucks, the brother and partner of defendant in brick contracts, for $125. The plaintiff further testifies, that the purchase money for both these lots was deducted at the settlement out of what was coming to him, and the deed from Jacob S. Loucks then and there delivered, for the other lot, and that the defendant had there a deed for the lot in suit, executed by himself, his sister and mother, for the consideration of $150, which he delivered then to the plaintiff. The plaintiff, finding some fault with the description, in that it did not take it to the centre of the road running by, handed it back to the defendant, stating his complaint, when the defendant took it and agreed to make it right and re-deliver it the following Saturday evening. The deed has never yet been brought back to the plaintiff or another delivered in its place, although the plaintiff states that he notified the defendant some months after, he wanted and was willing to take the deed so offered. The plaintiff further testifies that he fenced and has been in possession of the lot ever since it was marked off to him by the defendant and the settlement of 1873. It appears, further, that about March 9, 1874, the defendant sent the plaintiff a check for $165.99, the balance he admitted he owed him, but the plaintiff returned it, stating he desired to have a personal settlement. The defendant has this money yet. If the story of the plaintiff is correct, he not only bought the lot, but took possession, fenced and paid for it. He has offered some testimony by way of corroboration. . . . It would thus appear that the plaintiff has not only shown he bought the lot, but has also produced some corroborating testimony to support his position that he fenced and has had possession since 1873, and that the defendant had in his hands, during this time, $165.99, being $15 more than the purchase money; the plaintiff testifying and being surported in it by two other witnesses and some circumstances that it was retained on the purchase money of the lot.

The defendant testifies at length in denial. His statements are not entirely clear, consistent and satisfactory. He says that there were some negotiations with the plaintiff for this sale in 1872, when $150 was asked, one third cash, one third in three months, one third in six months, with interest, deed to be delivered when all was paid, and the plaintiff said he would take it; that nothing more was said until March or April, 1873, when the plaintiff came and asked about the lot, and defendant told him it was now worth more money. Then there was talk of a street through it, taking twenty feet off of it; he then proposed to the plaintiff if this was satisfactory he would still let him have it. He states the plaintiff objected to this, but some time after, defendant finding he could get the street through below, concluded to make the title to the plaintiff, "as he had first bought," and ordered the deed to be made out accordingly; that the plaintiff asked several times for the deed; finally, the deed was made out and plaintiff notified, when he came with Isaac Taylor, who had also bought a lot, examined and compared deeds, made no objection and told defendant to have them acknowledged. The deeds were then acknowledged, when the plaintiff and Taylor went on and put up their fences. The matter remained in this way for a couple of months, when the settlement occurred about the brick making. The deed being produced, the plaintiff objected to the description not having land enough; that it should extend to the middle of the road. It would appear there was no difference about the boundaries otherwise of the lot, the plaintiff only wanting the description so that it would extend to the middle of the road. The defendant further states that the plaintiff had the fences up around three sides of the lot; that the deed was executed by the defendant, his sister as co-tenant, and his mother.

It would thus appear, from the defendant's testimony, that all interested in the title had formally ratified the sale. At the time the deed was tendered, it does not appear the defendant demanded any money from the plaintiff. The defendant denies that he agreed to make the description in the deed right. The matter so remained, defendant says, till, about May, 1874, the plaintiff demanded the deed that had been tendered, when the defendant said, "we would leave it stand as it stood." The defendant states that he took the front fence off and forbid persons cultivating the lot for the plaintiff. He also states he had offered the deed to the plaintiff three or four times. He denies, however, that he deducted the $150 purchase money from plaintiff's brick bill, but has the $165 for the plaintiff since March, 1874. Jacob S. Loucks has been called by defendant to qualify somewhat his testimony for the plaintiff, wherein he said, "I think the boundaries given are correct," that he referred to the boundaries in the deed tendered the plaintiff; and further states that he had no actual knowledge of the $150 purchase money being deducted from the brick bill; but, as his brother, the defendant, paid the bills, and $125 paid for the lot sold by the witness to the plaintiff was paid out of the brick at that settlement when the deed was delivered, he concluded the $150 for the lot in controversy was also paid in the same way.

It is further shown by the defendant, the lot was continued to be assessed to him, and he paid the taxes. This circumstance must be considered with the other evidence in the case. It is well known, payment of taxes alone will not give title, nor will it create an ouster of the person in actual possession, although it may show a claim: Quin v. Brady, 8 W. & S. 140. Like any other voluntary payment of another's debts, it gives no rights and advantages against the owner who may be in actual possession: Sorber v. Willing, 10 W. 142; Murphy v. Springer, 1 Gr. 74. The contention of the plaintiff, in this behalf, is, that he allowed the assessment to remain in that way because he did not have his deed.

The refusal of the deed, by the plaintiff, when tendered him, is invoked against him. While the deed was refused, yet its...