Troup v. Troup

• Decision Date: 20 May 1878
• Parties: Troup <I>versus</I> Troup.
• Court: Pennsylvania Supreme Court

Page 149

87 Pa. 149

Troup versus Troup.

Supreme Court of Pennsylvania.

May 11, 1878.

May 20, 1878.

May 11th 1878.

Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent

Error to the Court of Common Pleas of York county: Of May Term 1878, No. 118.

Cochran & Hay, for plaintiff in error.—A writing which shows the intention of the parties and indicates the terms of a contract, the land to be conveyed and the price, will satisfy the Statute of Frauds. The boundaries of the land need not be precisely ascertained: Colt v. Selden, 5 Watts 525; McFarson's Appeal, 1 Jones 503; Smith and Fleek's Appeal, 19 P. F. Smith 474; Shoofstall v. Adams, 2 Grant 209; Ross v. Baker, 22 P. F. Smith 186; Evans v. Prothero, 13 Eng. Law & Eq. Rep. 163. If the contract itself was not sufficient it certainly was after entry and improvements made: Bowser v. Cravener, 6 P. F. Smith 132; Martin v. McCord, 5 Watts 493.

J. W. Latimer, for defendants in error.—A contract is void under the statute when the consideration or the subject-matter is undefined. When the law requires the contract to be in writing it means that the complete contract must be proved by the writing: Soles v. Hickman, 8 Harris 180. It cannot rest partly in parol: Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, 281. Where the subject-matter, the land, is described, parol evidence is admissible to apply the description; but never to furnish the description, and also to apply it: Ferguson v. Staver, 9 Casey 413; Smith and Fleek's Appeal, 19 P. F. Smith 474. The agreement must be so precise as to enable the inquirer to ascertain from it the terms of the contract, the land to be conveyed and the price to be paid: McFarson's Appeal, 1 Jones 503, 510; Blagden v. Bradbear, 12 Vesey Jr. 466. To take the case out of the statute, the plaintiff must prove possession taken under and in pursuance of the contract, and it is the notoriety of the change of possession that, more than anything else, takes a case out of the Statute of Frauds: Ackerman v. Fisher, 7 P. F. Smith 457. The possession taken must be exclusive of the vendor: Blakeslee v. Blakeslee, 10 Harris 237; and by boundaries distinctly ascertained: Frye v. Shepler, 7 Barr 91; must be continuous: Rankin v. Simpson, 7 Harris 471; and a continuance of former possession is insufficient: Christy v. Barnhart, 2 Harris 260; Greenlee v. Greenlee, 10 Id. 226; and improvements, such as clearing and fencing are not sufficient, if they can be compensated in damages: McKowen v. McDonald, 7 Wright 443.

Mr. Justice PAXSON delivered the opinion of the court, May 20th 1878.

The agreement between Emanuel Troup and Oliver Troup, dated the 26th of December 1868, lacks but one feature to take it out of the Statute of Frauds. It is not only in writing, but is under seal; it sets forth the subject of the contract; three acres more or less of land in Fairview township, York county; the consideration and time and mode of payment; the date when the conveyance was to be made, with the further stipulation that the possession was to be delivered immediately upon the execution of the agreement. We have here all that has been held to be essential, excepting the designation of the land intended to be conveyed. That is not described otherwise than as a tract of about three acres of land in Fairview township, York county. If at the time of the agreement, Emanuel Troup had been the owner of no other land in this township but a single tract of three acres, there would have been less difficulty. In such case, the maxim, certum est quod, certum reddi potest would apply. The fact was that he owned a large tract of land in said township, of which it is alleged the three acres in dispute formed a part. It is undoubtedly true as a general rule, that when the law requires the contract to be in writing, the entire contract must be proved by the writing. So much was said in Soles v. Hickman, 8 Harris 180. When, however, the subject-matter has been sufficiently described as to be rendered certain it has been held sufficient: Smith and Fleek's Appeal, 19 P. F. Smith 474. There is nothing upon the face of this agreement to enable us to reduce the description to certainty, and to say which three acres of the larger tract were intended. But the agreement was for immediate possession, and if it was accompanied by the delivery of possession under it the lines designated, and improvements of a permanent character made upon the premises, and part payment of the price, we think the case would come within the exceptions to the rule, and be taken out of the statute. The learned judge of the court below withdrew these questions of fact from the jury, and directed a verdict for the defendants, upon the ground that the agreement was so defective as to amount to nothing more than a parol contract. This ruling forms the basis of the different assignments of error.

This brings us to the important question, was the evidence of delivery of possession under the agreement and of the designation of the property by the parties, sufficient to induce a chancellor to decree specific performance? For if it falls below this standard the court was not bound to submit it to the jury. To determine this question, it is necessary to refer briefly to the evidence. Tobias Hartman testifies that Oliver had possession of the land he bought from his father. "He put on a house; he farmed over it and lived in the house." Peter...