Winpenny v. Winpenny

• Decision Date: 26 January 1880
• Citation: 92 Pa. 440
• Parties: Winpenny <I>versus</I> Winpenny.
• Court: Pennsylvania Supreme Court

Page 440

92 Pa. 440

Winpenny versus Winpenny.

Supreme Court of Pennsylvania.

January 13, 1880.

January 26, 1880.

January 13th 1880.

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

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1879, No. 25.

John Dolman and Benjamin Harris Brewster, for plaintiff in error.—The title here set up has been expressly decided to be a full legal title, and not a mere equitable title in Pennsylvania, in the case of Taylor v. Abbott, 5 Wright 353, which case decides plainly and broadly, that a purchaser, who has paid all the purchase-money, and has had possession delivered to him, has, in Pennsylvania, the full legal title, notwithstanding the contract stipulates for a deed, and in that case the sole question before the Supreme Court was, whether the first ejectment was a bar. It will not avail the defendant to offer evidence of improvements or length of possession. If the facts alleged by him be true, he had the legal title, and these elements will not change it into an equitable title. Nor can he qualify his legal title by calling the transaction the part execution of a parol contract.

Charles Davis, Wayne MacVeagh and Joseph J. Lewis, for defendant in error.—Defendant's title is an equitable one, and the verdict and judgment in the first trial work an estoppel against the plaintiff, and bar his right to recover in a second action: Seitzinger v. Ridgway, 9 Watts 496; Peterman v. Huling, 7 Casey 432; Church v. Ruland, 14 P. F. Smith 441; Bolin v. Connelly, 23 Id. 336; Treftz v. Pitts, 24 Id. 343; Ballentine v. White & Donaldson, 34 Leg. Int. 232. After the Statute of Frauds no legal or even equitable title to a fee passed by livery, unaccompanied by writing and without more; and even if possession were taken, only an equitable, not a legal title passed.

But in point of fact there was no technical livery, or any pretence of it, in the present case. There was simply the ordinary fact, of almost daily occurrence, of the vendee's going into possession without getting his deed. In such a case the purchaser would have no standing at all, whether as plaintiff or defendant, in a common-law court. His only remedy would be a bill for the completion of the contract by the conveyance of the legal title, on the ground of part performance. And this is just the case now presented to the court. Taylor v. Abbott, supra, only decides that articles of agreement sometimes operate as a deed of bargain and sale. But see the criticism of that case in Treftz v. Pitts, supra.

Mr. Justice GORDON delivered the opinion of the court, January 26th 1880.

By the present plaintiffs, against the same defendant and for the same property, an action of ejectment was instituted, in the year 1869, in the former District Court, which resulted in a verdict and judgment for the defendant. In that suit, Joseph Winpenny claimed, as he does in the present one, the premises in dispute, under and by virtue of a parol contract with his father, John Winpenny. The substance of the terms of that contract was as follows: the father owed the son some five hundred dollars, and in payment thereof agreed to sell and make him, the son, a deed for the property in controversy. Joseph accepted this proposition, went into possession and has continued that possession ever since, but he never received the promised deed. On trial of the present suit, the defendant put in evidence the record of the former case, together with the evidence, substantially as above stated, upon which it was tried.

Thereupon the court below directed a verdict for the defendant, on the ground that the former judgment, having been rendered for Joseph Winpenny upon an equitable title, was conclusive and a bar to a second suit.

Exception is taken to this ruling for two reasons: 1. That the title interposed by the defendant was not an equitable one; and 2. Admitting it to be such, it was not of such a character as to make one judgment in ejectment upon it conclusive. But if this is not an equitable title, we know not what name to apply to it, for it is certainly not a legal title, since that yet remains in the vendor or his heirs. Had John Winpenny...