Hess v. Calender

• Decision Date: 23 April 1888
• Docket Number: 72
• Citation: 13 A. 720,120 Pa. 138
• Parties: FRANCIS L. HESS v. CLARK CALENDER
• Court: Pennsylvania Supreme Court

13 A. 720

120 Pa. 138

FRANCIS L. HESS v. CLARK CALENDER

No. 72

Supreme Court of Pennsylvania

April 23, 1888

Argued April 10, 1888

ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY.

No. 72 January Term 1888, Sup. Ct.; court below, No. 228 September Term 1884, C.P.

On September 5, 1884, an action of ejectment was brought by Clark Calender, executor of the will of Joseph Hess deceased, against Francis L. Hess, to recover about 138 acres of land in Jackson township. The defendant disclaimed title to about 54 acres, and set up title to the remainder, 84 acres and 124 perches, by virtue of a parol gift from his father, Joseph Hess, the plaintiff's testator.

At the trial on February 10, 1887, the undisputed facts were, that in 1871, Joseph Hess, plaintiff's testator, being the owner of the whole tract, made a written contract for the sale of it to his son, the defendant. This contract was not enforced or complied with and in November, 1876, the father divided the place into two parts, one of which was put into the possession of the defendant. Joseph Hess, the father died in 1883, leaving a will dated November 2, 1882, duly admitted to probate, wherein he directed that his executor should dispose of the farm in Jackson township, providing for the distribution of the purchase money among his eight children by his first wife, the defendant, as one of them, to receive $300.

The defendant introduced testimony from which it was claimed that the contract of 1871 was rescinded by the parties because the land was unproductive and the defendant was unable to pay for it; that in 1876, the father, having divided the farm for the purpose, made a parol gift of the eastern or lower part of it, the land in dispute, to the defendant and assisted him in building a house upon it, contributing in various ways about $200 towards its cost; that the defendant accepted the gift entered into possession in pursuance thereof, and erected the house at a cost of about $850; that he added a kitchen to the dwelling, dug a well, planted orchards, put up and maintained a division line which was located under his father's direction and supervision, cleared about 30 acres of new ground, fertilized and improved the land so as to make it productive, paid the taxes, had the buildings insured in his own name with the knowledge and by the direction of his father and remained in open and notorious possession of the place as his own from the time he entered, undisturbed by any one until this ejectment was brought. There was also evidence that Joseph Hess declared at the time of the division that he was dividing the land for the defendant, and that, "Frank was to have the lower part;" that he subsequently and at various times pointed out the line to others as the line of the land he "had given to Frank."

On the part of the plaintiff, evidence was introduced in rebuttal from which it was claimed that in 1876, Joseph Hess made the division of the land intending to give the lower end of it to the defendant on condition that the latter would take his brother Billy, who was somewhat deranged and unmanageable, and keep him as long as he might live, and when the division was made, the defendant refused to perform the condition; that defendant was then living upon the upper part of the tract in a house too small and inconvenient for his growing family, and his father desired to help him into a more comfortable dwelling, and thus assisted to build the house upon the lower part; that this house was constructed chiefly from timber on the place, and when the defendant moved into it he continued to farm the entire tract of 138 acres, as he had been doing for several years, delivering a share of the produce to his father, as a tenant from year to year. Evidence was also introduced to show that the defendant sent the carpenters to his father, saying to them that he had no right to give out the job of building, the property belonged to his father; that in 1880 defendant asked an aunt to see his father and to ask him to devise the lower end of the farm to him, and that his father replied that "Frank would know what became of the land after he was gone," and that his father demanded rents of the defendant a few days before he died, etc.

The facts more fully appear in the charge to the jury.

At the close of the testimony, the defendant requested the court to charge the jury;

1. That, if the jury believe that Joseph Hess divided the one hundred thirty-eight acres in question, and surveyed off eighty-four acres of that tract to Francis L. Hess, the defendant in this action, and that Francis L. Hess entered upon the same and erected a house thereon, assisted by his father, and improved the place so set apart to him, pursuant to a parol gift from his father, as evidenced by the testimony of defendant's witnesses as to statements and declarations and acts of Joseph Hess; such acts are inconsistent with the continued existence of the agreement of April 8, 1871, and that contract is rescinded.

2. That if the article of April 8, 1871, was rescinded by the parties thereto; and if the jury believe, from all the testimony in the case, that there was a parol gift of the eighty-four acres of land, and that the defendant pursuant to that gift entered into possession of the tract and maintained exclusive possession of same and erected thereon a dwelling and other buildings and made such improvements and expenditures of money, time and labor thereon that he cannot be compensated in damages; such parol gift became an executed gift, is valid and binding on the parties, and the will of the testator being subsequent in point of time to such gift cannot nullify it, and the verdict must be for the defendant.

These points were refused, and the court, GREEN, J., 21st district, holding special term, charged the jury as follows:

Since the adjournment of court I have come to the conclusion that the proper thing to do under the circumstances would be to direct a verdict. I feel very well satisfied that there is so much doubt in the case as would prevent a chancellor from making a decree of specific performance; doubt, particularly, with regard to the agreement and to the taking possession under the agreement, such as to compel a ruling, deciding the cause. We therefore say to the jury that the court, naturally averse to taking from them the determination of the cause after they have carefully listened for two days to a great number of witnesses, yet feels compelled by a sense of duty under the authority of the Supreme Court to direct a verdict in this case.

The evidence to sustain a parol gift of land -- the claim here -- must be clear, positive, indubitable, conclusive. The question arises whether the evidence here is of that character which shows beyond a doubt that there was a gift of this land by the father to the son. To validate such gift, possession must have been taken by the donee in pursuance of the gift, and he must have made substantial improvements upon the land such as cannot readily be compensated in damages. The policy of the law requires that the muniments of title should be in a form not liable to mistake; that a conveyance of real estate should ordinarily be in writing; for a parol gift is in its nature uncertain and vague, resting in the memory of individuals, whose recollection may be uncertain or unreliable, whereas a writing always speaks for itself and speaks for all time. It contains within itself the description of the premises conveyed, the consideration that may have been paid, the names of the parties, and every essential of the contract; but a contract by word of mouth, alone, is necessarily liable to the defects which may be caused by failure of human recollection or to the distortion due to the wilful or the unconscious perversion of fact by human testimony, and therefore the law requires that a transfer of property in land shall be in writing or else shall be shown by clear and indubitable proof.

If we had only to consider the testimony on behalf of the defendant, Francis L. Hess, we think it might properly be submitted to the jury to determine the question of fact whether this alleged parol gift had been made out; but all the evidence in the cause, taken together, raises, I think, too much doubt to suffer us to say by its submission to the jury that it satisfies the requirement of the law, already mentioned, in regard to clearness and positiveness.

In 1871 there was an article of agreement for the sale of this land from the father to the son. If this agreement was changed at all, it was not till 1876, or within a year or two subsequently to that time. The surveyor, Dewitt, testifies that he was called by Joseph Hess in 1876 to run a division line between what have been called here the upper and lower tracts, and that Joseph said to him at that time, that he intended the lower tract for Frank, or Francis, the defendant; and that, at Joseph's direction, he made out in Frank's name the draft for this lower tract. That draft is not produced, but the witness produces a draft which he swears is a copy, and that he made out the original in Frank's name, as directed by Joseph. This is strong testimony to show an intention on the part of Joseph Hess at that time to give this land to his son Frank; but if the intention is not carried into action it amounts to nothing if it were true that he really did intend to give this tract of land to his son Frank, but if he did not in fact give it to him, then his intention would not be sufficient to establish the claim of a parol gift. Knouse testifies that he helped to run this division line, and that on the evening of the same day on which the division line was run he heard a conversation between Joseph and Frank, in which Joseph...