Hancock v. Melloy

• Decision Date: 17 October 1898
• Docket Number: 175
• Citation: 187 Pa. 371,41 A. 313
• Parties: Mary Kate Hancock, wife of Elmer E. Hancock, v. George D. Melloy, Appellant, J. Frank Melloy, Helen M. Melloy, and Rachel Melloy
• Court: Pennsylvania Supreme Court

41 A. 313

187 Pa. 371

Mary Kate Hancock, wife of Elmer E. Hancock, v. George D. Melloy, Appellant, J. Frank Melloy, Helen M. Melloy, and Rachel Melloy

No. 175

Supreme Court of Pennsylvania

October 17, 1898

Argued January 7, 1898

Appeal, No. 175, Jan. T., 1897, by defendant, George D Melloy, from decree of C.P. No. 2, Phila. Co., June T., 1894 No. 690, on bill in equity. Affirmed.

Bill in equity for specific performance.

PENNYPACKER P.J., found the facts to be as follows:

1. John M. Melloy died intestate May 1, 1890, leaving surviving him a widow, Rachel Melloy, and four children, George D. Melloy, J. Frank Melloy, James B. Melloy, and Mary Kate Hancock.

2. Letters of administration upon his estate were granted to the widow, Rachel Melloy, and the affairs of the estate were managed by George D. Melloy. He acted as agent for his mother as administratrix, and he took possession of all of the assets of the estate and collected all of the income.

3. On or about July 1, 1870, John M. Melloy purchased a store and lot of ground situate on the north side of Market street, between Ninth and Tenth streets, in the city of Philadelphia, containing in front on Market street twenty-three feet and in depth two hundred feet to Hunter street, being No. 929 Market street. The cash paid, being $10,000 over and above the incumbrances of $23,000, was furnished by John M. Melloy, and by his direction the conveyance was made to his son George D. Melloy.

4. The business, which previous to 1870 had been conducted by John M. Melloy, was continued after that date in the name of John M. Melloy's Sons, consisting of George D. Melloy, J. Frank Melloy, and James B. Melloy; and John M. Melloy at that time retired. He, however, retained a desk at the store and was paid $12.00 a week by the firm until his death. No entry indicating the change was made upon the books. The bill, note, and letter heads, the circulars, and the bank account, were changed. At this time the business was worth about $14,000 or $15,000.

5. That George D. Melloy said at various times to his mother, Rachel Melloy, to Mary Kate Hancock, the complainant, Susan E. Melloy, Helen May Melloy, Helen Melloy, and Elmer E. Hancock that, while the store property was in his name, he held it in trust for the family, and that each of his brothers and his sister had a one-fourth interest in it, or words substantially to that effect. Though he denies having made these statements, his denial was somewhat uncertain in tone, and there is so much testimony to the contrary, corroborated by his willingness to make the agreement hereinafter referred to, that the court is compelled to find that his testimony is in this respect incorrect.

6. Rachel Melloy, administratrix of John M. Melloy, filed her account of distribution of the said estate in the orphans' court for the city and county of Philadelphia. In this account she charged herself with nothing representing any interest which John M. Melloy may have had in the firm of John M. Melloy's Sons.

7. The complainant, Mary Kate Hancock, through her counsel, Frank P. Prichard, Esq., claimed to surcharge the administratrix with the value of the assets of the business carried on at 929 Market street, and claimed further that the complainant was the equitable owner of a one-fourth interest in the store and also in a property No. 1340 North Twenty-third street, purchased with firm assets and standing in the name of George D. Melloy. The account of the administratrix was called for audit February 5, 1894, but in consequence of the raising of these questions between the parties the hearing was postponed until February 7, 1894.

8. On February 6, 1894, Mary Kate Hancock, her counsel, Frank P. Prichard, Rachel Melloy, and George D. Melloy met at the office of William H. Staake, Esq., and after the matters in controversy were discussed and after considerable negotiation it was verbally agreed between Mary Kate Hancock and George D. Melloy that George D. Melloy should convey to Mary Kate Hancock, a one-fourth interest in the store No. 929 Market street, subject to the incumbrances upon the property, and should further pay to her $2,000 for back rent and a rental of $520 per year for the future, beginning with February 1, 1894, and that she should withdraw any claim to surcharge the administratrix with the assets of the business and any claim to the house on Twenty-third street, and should consent to a confirmation of the account as it had been filed.

9. In pursuance of this agreement counsel for Mary Kate Hancock, together with counsel for George D. Melloy, appearing before the orphans' court February 7, 1894, said to the auditing judge that an agreement had been reached and that the account might be confirmed. An adjudication was thereupon filed confirming the account, and it was subsequently confirmed absolutely.

10. George D. Melloy has since refused to carry out his part of the agreement.

The court finds the law as follows:

1. A part performance of an oral contract for the conveyance of an interest in real estate takes it out of the operation of the statute of frauds and enables a court of equity to decree a full and specific performance of such contract.

2. The agreement between the complainant and George D. Melloy to settle the questions of surcharge and to withdraw the objections to the confirmation of the account of the administratrix, and the subsequent confirmation of the account by the court in pursuance of this agreement, was such a part performance as enables the court to decree a specific performance of this agreement.

3. A decree ought to be made requiring George D. Melloy to make a conveyance of a one-fourth interest in the store property No. 929 Market street to the said Mary Kate Hancock, subject to the incumbrances, and requiring him to pay to her $2,000 and a rental of $520 per year from February 1, 1894.

4. The demurrer of the defendant, George D. Melloy, ought to be overruled.

Errors assigned were to the court's third, fifth and eighth findings of fact, and to all of the court's findings of law, and to decree of the court.

An examination of all the assignments of error fails to detect anything calling for reversal. The decree is therefore affirmed, and the appeal dismissed at costs of appellant.

Theodore F. Jenkins and George P. Rich, for appellant. -- The bill is subject to two fatal defects, to wit: (a) It is an ejectment bill, of which a court of equity will not take jurisdiction, for the reason that the plaintiff must pursue the plain and adequate remedy which she has at law to recover possession of the land, by her action in ejectment: Barclay's App., 93 Pa. 50; Richard's App., 100 Pa. 52; Kennedy's App., 81 * Pa. 163; (b) it is a bill to enforce a parol contract for the sale of lands, and as such falls within the prohibition of the statute of frauds, it being requisite in order to take such a contract out of the statute that not only must the purchase money have been paid and the contract so far performed that compensation in damages would be inadequate and rescission unjust and inequitable, but the plaintiff must have taken and maintained exclusive and notorious possession of the property, under and pursuant to the contract: Act of March 21, 1772, sec. 1.

Every parol contract for the conveyance of land is within the statute of frauds and perjuries, except where there has been such part performance as cannot reasonably be compensated in damages, and where it would be unjust to rescind the same. Unless possession be taken under the contract, there can be no pretense of part performance: Moore v. Small, 19 Pa. 461; Postlethwaite v. Frease, 31 Pa. 472; Derr v. Ackerman, 182 Pa. 591; Workman v. Guthrie, 29 Pa. 495; Washabaugh v. Entriken, 34 Pa. 74; Shoofstall v. Adams, 2 Grant, 208; Whiting & Co. v. Pittsburg Opera House Co., 88 Pa. 100; Chadwick v. Felt, 35 Pa. 305; McCormick's App., 57 Pa. 54; Spencer's App., 80 Pa. 317; Yeakle v. Jacob, 33 Pa. 376; Huff v. McCauley, 53 Pa. 206; Goucher v. Martin, 9 Watts, 106; Meason v. Kaine, 63 Pa. 335; Myers v. Byerly, 45 Pa. 368.

The confirmation of an executor's account is a conclusive decree as to such matters only as are properly embraced within it, not as to matters not so embraced: Robins's Est., 180 Pa. 630; Swartz v. Morgan, 163 Pa. 199.

An attorney may open a default which he has taken, whether improperly or not, and vacate the judgment entirely, even though his client has instructed him to the contrary: Hageman v. Salisberry, 74 Pa. 280.

Henry P. Brown, with him John K. Valentine, for appellee. -- The finding of the court under the new equity rules are like the findings of a master under the old practice. They will not be set aside on appeal if they appear to have been authorized by the evidence: Com. v. Stevens, 178 Pa. 543; White v. Wright, 179 Pa. 75.

The contract having been performed to such an extent and in such a way that to declare it invalid would work a fraud upon the plaintiff, a court of equity will enforce it: Fry on Specific Performance, ed. of 1881, secs. 555, 556; Story's Equity Jurisprudence, sec. 762; Moore v. Small, 19 Pa. 466.

The sufficiency of the consideration for a compromise is not to be determined by the soundness of the original claim of either party. The very object of compromise is to avoid the risk or trouble of that question: Fink v. Farmers' Bank, 178 Pa. 170; McMurrary's App., 101 Pa. 427; Britton's App., 45 Pa. 172; Williams v. Morris, 95 U.S. 457; Brown v. Sutton, 129 U.S. 238.

It has not uniformly been held that possession was an indispensable prerequisite to entitle one to a specific enforcement of a parol contract for the sale of land: Riggles v Erney, 154 U.S. 244; Townsend v. Vanderwerker, 160 U.S. 171; Denver &...