Ackerman v. Fisher , 57 Pa. 457 ( 1868 )

The opinion of the court was delivered, by

Strong, J.

The alleged parol contract of sale, upon which the plaintiffs below founded their claim to recover in this case, was made, if made at all, between a father and a son. In such a case it has more than once been said that clearer and stronger evidence is required of the father’s intention to part with his dominion over, and ownership of, the property, than is required in eases of parol contracts between strangers in blood. This is because a parent and child do not commonly deal with each other as they deal with strangers. There is a mutual confidence that is not watchful against assertions of right founded on the expressions of the one or the other. Nothing is more common than that a father speaks of a farm, upon which he has placed a son, as the son’s farm, or a house in which he permits the son t'o live, as the son’s house. It is every day’s occurrence that a father speaks of having given a lot of ground to a son, when it is plain there was no intention to transfer the ownership. And such language is not confined to parol gifts. When a father says, I sold such a piece of real estate to my son, he generally means no more than that he agreed that the son might have it for a consideration. He does not necessarily mean that his own dominion over it has ceased, and that a sale has been executed. Were courts to look at the language of parents, expressed to others, as evidences of title in children, it would annihilate domestic confidence, and it would doubtless, in most eases, be giving an effect to loose declarations that was never intended. Upon this subject the remarks of this court in Eckert v. Mace, 3 Penna. R. 365, and in Poorman v. Kilgore, 2 Casey 372, are full of meaning. When an attempt is made to set up a parol contract of sale against a father, either by his son, or one claiming under the son, the evidence of the contract must be direct, positive, express and unambiguous. Not only must the terms and conditions of the contract and its subject be well and clearly defined, but it has been held, that the contracting parties must be brought together face to face. The witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence. A contract is not to be inferred from the declarations of one of the' parties. If it could be, it might be enforced against one party and not against the other. See Taylor v. Henderson, 2 Wright 60.

In the case now before us there was no direct evidence of any contract between George Ackerman and his son John. No witness was present when the sale was made, if it ever was; the parties to it were not brought together, and there was no proof that they ever acknowledged the bargain to each other. The plaintiffs below relied entirely upon declarations of the father made to strangers, that he had sold the lot to John, and one declaration that he had sold it for $600, but without any mention of the time when he had sold, or when the consideration was to be paid, or when possession was to he given. Nor was it ever said, so far as appears, how the purchase-money was to he paid, or whether it had been paid. Of the son’s assent to any bargain nothing was proved, except that he said to a stranger he had bought the lot, without mentioning the date of his purchase or the price agreed to be paid, or asserting its payment, or stating when he became entitled to possession. To call this direct, positive, express and unambiguous evidence of a contract of sale, with its terms and conditions well defined, is impossible. There is nothing in all that was proved that would ever have enabled the father to maintain an action on the contract' against the son.

And even if there were sufficient evidence of a contract, there was no satisfactory proof that the purchase-money was paid. All that there was, is found in one declaration of the father that he had sold for $600. In a case where it is sought to enforce a parol contract for the sale of land, the payment of the price must be proved positively. It cannot he left to conjecture. Every presumption is against a claimant under such a sale. He asserts a right against the plain language of a statute. It is not enough for him that he shows, either that a contract may have been made, or that the price may have been paid, or that possession may have been taken under the contract and in pursuance of it. None of these essentials to a right in him can he left in uncertainty. But it is obvious the father may have sold for $600, and yet the purchase-money never have been paid. An assertion of a sale for a specified price does no.t necessarily imply that the price has been paid.

There is still another fatal defect in the case of the plaintiffs below. There was no proof that John Ackerman took possession of the lot under the contract and in pursuance of it, if one was ever made. This Was indispensable, as numerous cases show. He was in possession after the father said he had sold the lot to him. But when did he enter ? Was it before the parol sale or after ? The evidence does not answer. If before, his possession was worthless as evidence of an executed parol sale. It is the notoriety of a change of possession in execution of the parol contract that, more than anything else, takes a case out of the Statute of Frauds.

It might be added that the evidence was very defective of the value of the improvements made, and that it does appear George Ackerman, the father, paid in part for them. He paid for lumber and nails. But, placing no reliance upon this, it is enough that there was no such proof of a contract, or of the payment of the purchase-money, as the law requires, and there was no clear evidence that John Ackerman went into possession under the contract, in pursuance of it and on the faith of it. The court should therefore have affirmed the point of the defendants, and instructed the jury that they were entitled to the verdict. Of course there was error also as averred in the 3d, 4th and 5th assignments. The 6th is immaterial, and the 7th is not sustained. The verdict was sufficiently certain.

Judgment reversed, and a venire de novo awarded.