Jamison v. Dimock

• Decision Date: 04 October 1880
• Citation: 95 Pa. 52
• Parties: Jamison <I>versus</I> Dimock et ux.
• Court: Pennsylvania Supreme Court

Page 52

95 Pa. 52

Jamison versus Dimock et ux.

Supreme Court of Pennsylvania.

June 1, 1880.

October 4, 1880.

June 1st 1880.

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

Error to the Court of Common Pleas of Lycoming county: Of May Term 1880, No. 177.

Lloyds and H. C. McCormick, for plaintiff in error.—There was no such evidence of a parol contract as would justify a decree of specific performance thereof. There was no contract to sell a house for $6000, nor such possession taken as the law requires. It was not taken until a year after the execution of the contract upon the completion of the house. This contract should not be considered outside the Statute of Frauds and Perjuries. There were not the necessary elements to take the case out of the statute. The court should have taken the case from the jury under the authority of Moore v. Small, 7 Harris 461, and Rankin v. Simpson, Id. 571.

H. C. Parsons, B. S. Bentley, Jr., and J. O. Parker, for defendants in error.—The facts were found by the jury, and the simple question is, whether upon the finding of the jury there is sufficient to take the case out of the statute. Where the purchase-money is paid and full possession taken as found here, it is an executed contract, and does not come within the statute. Mrs. Jamison had no equity which the court was bound to regard.

There is a distinction between the case at bar and nearly, if not all, the cases bearing upon this subject. Here there was absolutely nothing to be done between the parties except the execution and delivery of the deed by Herdic; the contract was, therefore, not executory, but was, on the other hand, finished and completed, and did not come under the rule of enforcing the specific performance of the same, as there was nothing to enforce in the way of payment of any or all of the purchase-money, of delivering possession, and such like.

In regard to the contention that there was no actual sale, but simply a loan with security, it is to be observed that this was one of the vital questions left to the jury.

Mr. Justice STERRETT delivered the opinion of the court, October 4th 1880.

Both parties claim under Peter Herdic who, in 1874 and prior thereto, was owner in fee of the lot in controversy. The plaintiff gave in evidence the deed of Herdic and wife to Barber, dated and recorded in November 1877, and mortgage of same date from Barber to Herdic; also record of the scire facias and judgment thereon, followed by sheriff's sale and deed of March 1879, thus vesting in her the legal title previously held by Herdic, and prima facie entitling her to a verdict. The defendants, on the other hand, relied on an equitable title in Mrs. Dimock, founded on a parol contract of sale made in 1874, and so far executed by payment of the entire consideration and exclusive possession of the property taken and held in pursuance thereof, &c., as to make it inequitable and unjust to rescind the contract. Their contention is that the equitable title thus acquired under the contract is superior to the plaintiff's legal title of later date, and should prevail; in other words, that Mrs. Dimock's equities are such as to move the conscience of a chancellor and justify a decree of specific performance. The defendants' testimony tended strongly to prove that in December 1874, Herdic contracted with Mrs. Dimock to build for her a dwelling house on the lot in dispute, and when completed, according to the plan selected, give her possession and convey the property to her in fee for the consideration of $6000; that in pursuance of this contract the house was completed, the consideration money fully paid, and exclusive possession given in October 1875, and retained ever since; that Herdic was repeatedly requested to settle for interest which he agreed to pay on the purchase-money in consideration of having received it in advance of the erection of the building, and to make a deed for the property, but he neglected to do so and finally executed the deed to Barber and took from him the mortgage on which it was afterwards sold by the sheriff and conveyed to the plaintiff, and that Herdic, shortly after conveying the property to Barber, became insolvent, filed his petition in bankruptcy, and has since obtained his discharge as a bankrupt. This is an outline of the material facts alleged by the defendants and strongly supported by their testimony.

The plaintiff introduced rebutting testimony for the purpose of disproving the allegations of the defendants as to the contract, payment of purchase-money and possession in pursuance thereof, and to show that the money was received by Herdic as a loan and not as the price of the property.

The subject of complaint in the first two assignments of error is the refusal of the court to affirm the plaintiff's first and second points. In each of these, making "improvements by the vendee, which cannot be compensated in damages," is declared to be an essential ingredient to take the case out of the Statute of Frauds. While this may be true as to parol gifts of land, in which the expenditure of money and labor in improving the property takes the place of a pecuniary consideration, it is not correct as applied to a case like the present, which is claimed to be a parol sale for a money consideration, fully paid according to the contract, possession taken and continuously held in pursuance thereof. There was no error therefore in refusing to hold that a parol contract of sale cannot be specifically enforced unless the vendee can show that he has made improvements for which he cannot be compensated in damages. There are undoubtedly cases in which the equities of the vendee rest upon other equally available grounds.

The third specification of error is the refusal of the court to charge, "that under all the evidence in this case the plaintiff is entitled to recover." This presents the most important...