Moore v. Small
| Decision Date | 01 January 1858 |
| Citation | 19 Pa. 461 |
| Parties | Moore versus Small. |
| Court | Pennsylvania Supreme Court |
Stevenson, for plaintiffs in error.
Stewart and Sullivan, for defendants.
The statute of frauds and perjuries, regarded as a rule of property, is simple and intelligible. Every mind is capable of understanding that contracts about land, if more is meant than a three years' lease, must be in writing. This rule is as apprehensible and appreciable by the common mind as those other statutory rules which make twenty-one years' adverse possession of land, title thereto; bar actions on simple contracts after six years' delay; require judgments to be revived once in five years; and liens of mechanics and material men to be entered within six months after the contract executed.
And what rule is more reasonable? Land is the most important and valuable kind of property. Or if it be not, there is no other stake for which men will play so desperately. In men and nations there is an insatiable appetite for lands, for the defence or acquisition of which money and even blood sometimes are poured out like water. The evidence of land-title ought to be as sure as human ingenuity can make it. But if left in parol, nothing is more uncertain, whilst the temptations to perjury are proportioned to the magnitude of the interest.
The infirmities of memory, the death of witnesses, the corruptibility of witnesses, the honest mistakes of witnesses, and the misunderstandings of parties, these are all elements of confusion and discord which ought to be excluded from titles to the most coveted, if not most valuable of terrestrial objects. And it is the purpose of the statute of frauds and perjuries to exclude these elements, and to compel men to create testimonials of their intentions which are certain and enduring.
Blackstone speaks of the reign of Charles II. as more polite than its predecessors, and it was distinguished by several enactments that marked an advancing civilization. The statute for prevention of frauds and perjuries was one of those enactments Though enacted before the charter to William Penn, this statute has been held not to extend to Pennsylvania. But its most material provisions were supplied to us by our Act of 21st March, 1772. It is remarkable how completely, both in England and Pennsylvania, the public mind has acquiesced in these enactments. History tells of no popular movement in either of these representative governments, for the repeal or material modification of the statute of frauds and perjuries. Chancellors and judges have often manifested great uneasiness under its operation, and have expounded and refined until the rule has ceased to be looked for in the statute itself, but must be tracked through volumes of jarring and contradictory decisions. The people however, whose representatives furnished the rule, have indicated their willingness that it should have free course, by never calling on their representatives to repeal it.
And yet it must be confessed, the idea, first started in England, I believe by Sir William Jones, that a statute made to suppress perjuries and frauds should be so construed as not to become an instrument of fraud, was a logical deduction. The popular acquiescence of which I have spoken may be due, in some measure, to this necessary and reasonable construction. But, that the statute should have effect except where its operation would defeat its objects, is a corollary from this principle of construction, and agreeable to reason, though lost sight of in the decision of many cases. Hard cases make bad precedents, is a maxim that has been strikingly illustrated by the course of decision under this statute. Judges have been borne away, by sympathy for parties, from the letter of the law, and in their benevolent efforts to accommodate it to the changeful circumstances of cases, copious fountains of litigation have become unsealed. Nobody has lamented this judicial amiability more than the judges themselves. For the last twenty years there has scarcely been a judge of any considerable reputation, either in England or the United States, who has not in some manner put on record his regrets, the results of large experience, that the statute had been so widely departed from, and his conviction, that more evils have resulted from such departures than they have remedied.
The best rule of construction that I have ever seen applied to the statute of frauds and perjuries, is that suggested in some of the English cases, and adopted by the Legislature of Pennsylvania in the Act of 10th March, 1818, providing for the proof and specific execution of the parol contracts of decedents, where such contract shall have been so far in part executed as to render it unjust to rescind the same.
This excludes the possibility of the statute becoming an instrument or occasion of fraud, for if, in any case, it is not unjust to rescind a parol contract, it cannot be fraud to rescind it. The Legislature seem to have considered all parol contracts as within the statute of frauds and perjuries, and that, though partly executed, they ought to be rescinded, if it can be done without injustice to the parties; but if they have been so far executed as to render it unjust to rescind them, then the Courts shall hold them to be without the statute, and go on and execute them fully. In passing upon the question of injustice, reference is to be had to the fact that the 4th section of the British statute, which forbids any action on a parol agreement, unless there be a note of it in writing, signed by the party to be charged, is wholly omitted in our statute. Actions for damages on parol contracts for land have been often sustained in Pennsylvania: Bell v. Andrews, 4 Dal. 152; Ewing v. Tees, 1 Bin. 450. The measure of damages in such actions is not the value of the land, for that would work an evasion of the statute, but is the price paid or services rendered: Hastings v. Eckley, 8 Barr 197.
The rule of construction, then, which is deducible from the Act of 1818, may be stated thus: Every parol contract is within the statute of frauds and perjuries, except where there has been such part performance as cannot be compensated in damages. This rule seems to me more reasonable than that delivery of possession under the parol contract shall be part performance to take it out of the statute, as has been asserted in many cases, English and American, and especially in Pugh v. Good, 3 W. & Ser. 63. Without possession taken and maintained under the contract, there can be no pretence of part performance, but generally that is an act which admits of compensation, and therefore too much is made of it when it is treated as sufficient ground for decreeing specific execution.
The rule that I have stated, though not steadily adhered to, has been recognised in many cases in this Court. See Clark v. Vankirk, 14 Ser. & R. 354; Eckhert v. Eckhert, 3 Penn. Rep. 362; Wack v. Sorber, 2 Wharton 253; McKee v. Phillips, 9 Watts 85; Lee v. Lee, 9 Barr 178.
Seeing that it flows from an Act of Assembly, and has received the sanction of this Court, we shall do well to stand steadily by it. But then a question arises, who is to administer it, the Court or the jury? Under the Act of 1818, or that of 1834 for the proof of contracts of decedents in the Orphans' Court, there can be no question that it is the business of the Court to administer it. Is it so then, that the equity of a decedent's contract is to be administered by the Court whilst that of a living man's contract is to be thrown into the jury box? The living would have a right and good reason to object to such a distinction in favor of the dead.
In everything but the form of proceeding, we are bound to deal with a parol contract for land as a chancellor would deal with it. When the proceeding is by bill, a jury has nothing to do with the facts or the equity — the chancellor determines both. To satisfy his conscience, he may, at his discretion, send issues of fact to a jury, but he is not bound to do so. Having done so, he may grant a new trial or...
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