Soles v. Hickman
| Decision Date | 28 March 1853 |
| Citation | 20 Pa. 180 |
| Parties | Soles <I>versus</I> Hickman. |
| Court | Pennsylvania Supreme Court |
ERROR to the District Court of Allegheny county.
Page 181
Woods, for plaintiff in error.—It was remarked that the lot was sold for the unpaid taxes of 1832 and 1833; that the duplicate showed four lots, Nos. 45, 46, 47, 48, assessed together at 40 cents; that they were not mentioned in the duplicate as unseated, nor as such assessed or returned; that in the spring of 1834, immediately before the treasurer's sale, they were placed by the commissioners
Page 182
on the unseated land book in the name of Thomas Stokely, who, it was alleged, purchased from the proprietor at a sale in 1796. It was suggested that the commissioners had no right to value and assess each lot separately; that the lot should have been assessed as unseated or returned as such by the collector: 3 Watts 260; 1 W. & Ser. 310.
It was contended that the receipt was sufficient; that the Act of 1772 requires only a writing showing that there is a contract: 5 Watts 528, Colt v. Selden; 10 Watts 389; 1 Jones 510. It was alleged that this receipt was as effectual as an agreement in which the price has been omitted, and which, it was alleged, could be proved by parol.
3. It was submitted whether, where one party rescinds the agreement, the other has not the right to consider it as rescinded, and to remove his buildings; and that a conditional verdict might have been rendered entitling the defendant to such privilege.
Magraw and Hamilton, for defendant in error.—That the tax sale was valid, reference was made to 2 Pa. Rep. 496, Hubley v. Keyser; 1 W. & Ser. 328; 5 Watts 287.
As to second assignment: Where the writing does not state the amount of the purchase-money, &c., it is not sufficient to take the case out of the statute: 13 Johns. 296; 15 Id. 505; 5 East 10; 12 Ves. 466. In the case of Colt v. Selden, 5 Watts 528, cited, the price, manner, and terms of payment are set out in the agreement. In this case no part of the purchase-money was absolutely paid, nor was possession taken in pursuance of any contract.
The whole agreement must be in writing, and the consideration is a material fact which cannot be proved by parol: 3 Johns. 215; 5 Mass. 358; 5 Cranch 142.
Possession must be taken in pursuance of and in part performance of the contract: 1 W. & Ser. 389, Allen's estate; (see Moore v. Small, 7 Harris 461; Rankin v. Simpson, 471, Id.)
The opinion of the Court was delivered, March 28, 1853, by LOWRIE, J.
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