Hill et al. v. Meyers

• Decision Date: 26 June 1862
• Citation: 43 Pa. 170
• Court: Pennsylvania Supreme Court
• Parties: Hill <I>et al. versus</I> Meyers.

43 Pa. 170

Hill et al. versus Meyers.

Supreme Court of Pennsylvania.

June 26, 1862.

ERROR to the Common Pleas of Adams county.

The case was argued by David Mills and Daniel W. Smyser for defendants in error.

The opinion of the court was delivered, June 26th 1862, by STRONG, J.

This was an ejectment for an undivided moiety of a tract of land in Cumberland township, containing one hundred and fifty acres, more or less, and having certain improvements thereon. In 1812, the entire ownership of the land was vested in Samuel Witherow and David Witherow, and it was in their joint possession. In 1821 a judgment was recovered against Samuel, and by virtue of executions issued thereon, his interest in the land was sold November 10th 1823, to Peter Epley, under whom the plaintiff below claims. It is not controverted that under that sale the purchaser acquired the undivided half of the land that had belonged to Samuel Witherow. This ejectment is not brought for that half. The plaintiff seeks to recover the other moiety, of which David Witherow was the owner, alleging that it had become the property of Samuel before the judgment was obtained against him. His case is, that on or about the 3d of May 1814, David Witherow made a parol contract of sale to his brother, Samuel Witherow, and that some time afterwards he removed from the property, leaving Samuel in possession, and that a part if not all the purchase-money was paid before 1821, when the judgment was recovered against Samuel. The bargain between the brothers was relinquished in 1822, but the plaintiff contends that prior to that time Samuel had acquired an equitable interest in David's half, under the parol contract, an interest upon which the judgment was a lien. There was no direct evidence of the amount of the consideration which Samuel was to pay. It was however inferrable, from a deed prepared by a scrivener, but never delivered, Samuel never having complied with the conditions of the parol agreement. In the court below the case was made to turn mainly upon the question whether the consideration for the parol agreement to sell had been paid in whole or in part, previously to the judgment recovered against Samuel, or to the levy under the execution issued upon the judgment. It seems to have been assumed that if the consideration was paid, the purchaser had acquired an interest in the land, and most of the exceptions to the charge of the court as well as to the admission or rejection of evidence involve a consideration of the correctness of this assumption.

Clearly, if there be nothing more than the payment of the purchase-money, a purchaser acquires no title, either legal or equitable, under a parol contract. The Statute of Frauds is in his way. It is true, equity holds that if a parol contract for the sale of land be so far executed that it would work a fraud to rescind it, that is, if what has been done under it is incapable of being compensated at law, an equitable title passes notwithstanding the statute. But payment of the purchase-money may be compensated. It may be recovered back with interest. Accordingly it has been often held that payment of the purchase-money alone will not take a parol purchase out of the statute. This was more than intimated in Wither's Appeal, 14 S. & R. 185, and it was directly decided in McKee v. Philips, 9 Watts 85, in Parker v. Wells, 6 Whar. 153, and in Gangwer v. Fry, 5 Harris 491. To take a case out of the statute, and to give the purchaser more than a tenancy at will, there must be a delivery of possession under the parol contract. The purpose of the statute was to prevent secret frauds, and the temptations to perjury, which are presented where title may be maintained by oral testimony. Hence a writing signed by the parties is required, and even courts of equity, though dispensing with the form, sternly demand the substance. There must be, at least, the publicity which attends an open transfer of the possession. An unequivocal and substantial change of the occupancy must be a part of the evidence of the contract: a fact itself attesting that the parties have bargained, and therefore the possession must be delivered under the parol agreement. So much, at least, is fully sustained by the authorities. Without referring to the great multitude which our reports contain, a citation of two or three will suffice: Haslet v. Haslet, 6 Watts 464: Gangwer v. Fry, 5 Harris 491; Robertson v. Robertson, 9 Watts 42, and Woods v. Farmane, 10 Watts 195. If the purchaser under a parol agreement was in possession when the agreement was made, his continued possession will not avail him. It is no equivalent for the writing which the statute demands: Jones v. Peterman, 3 S. & R. 543; Eckert v. Eckert, 3 Penna. 332; Aitkin v. Young, 2 Jones 15. Thus a tenant in possession cannot buy from his landlord by parol agreement, for, being already in possession, there can be no such notoriety to a delivery, as equity will regard a substitute for a written contract: Greenlee v. Greenlee, 10 Harris 225. It cannot be overlooked that the tendency of modern decision has been to return to the plain reading of the statute. Experience has shown that the departures which courts of equity at first sanctioned have brought back all the evils which it was the purpose of the Statute of Frauds to remedy. They have caused the title to land, which in all civilized communities has been regarded of the first importance, to be dependent upon the frail recollection of witnesses, stimulated and perverted by the apparent hardships of a particular case, a case which could never have arisen had the mandate of the legislature been obeyed. In view of these results of the course of equitable decision, this court has been constrained to hold that even possession taken under and in pursuance of a parol contract does not of course give the purchaser an equitable title. Even in such a case, it may work no fraud to rescind the contract or to treat it as null. It may still admit of compensation. Thus, in Dougan v. Blocher, it was said by Mr. Justice Woodward that "possession, to be part performance, must be taken under and in pursuance of the contract, and...