Detrick v. Sharrar , 95 Pa. 521 ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court,

In 1853 Jacob Sharrar bought .the land by articles of agreement, paid a small portion of the purchase-money, gave his bond with Jacob Detrick as surety for the balance, took and kept possession till his death in 1857. With full knowledge of Sharrar’s equitable title, Jacob Detrick paid the balance of purchase-money and took deed to himself dated April 21st 1869. . Being liable as surety, it was reasonable that he should so pay and take the title. Soon after Sharrar’s death, Detrick took possession and -used the land as his own until 1876, when he died.

After taking the deed Detrick stood in the place of the vendors who sold to Sharrar, and on its face and the written contract he was bound to convey on payment to him of the purchase-money : Donovan v. Driscoll, 12 Norris 509. He knew he took only the legal title. His rights were those of a vendor who had peaceably got possession from his vendee; and on performance by the vendee of his part of the agreement, he would be entitled to recover possession. The plaintiffs, as heirs of Sharrar, are invested with such title as he had; and the defendants, devisees of Detrick, hold his title, but in no sense are innocent purchasers. As the cause was tried, there is no question but Detrick had fully reimbursed himself for the purchase-money by sales of land not embraced in the suit, but a part of that in his deed.

The first ground of defence is, a parol sale by Sharrar to Detrick. What is the actual proof of an oral contract? Mrs. Fox testifies, that about five weeks before Sharrar’s death, he “ told Detrick to take the land and do the best he could, for he could not pay for it; if he would pay for it, it was his, and to try and raise the children.” That is all. Detrick did not reply. His conversation with his neighbors after the death of his son-in-law does not indicate that he had purchased from Sharrar; but those conversations, as proved, cast scarcely any light on the question. His possession, cultivation and improvements for a long time make little as against his young grandchildren. This is not a case for relaxing the strictness of proof of the alleged oral contract because of the lapse of time. As applied to the testimony, we find no error in the instructions of the court in answer to defendants’ first point.

The parol contract set up not being established by the verdict, no question arises under the Act of 1856. Hence, the second specification of error requires no remark.

The second ground of defence is, former recovery; and it is urged that error was committed in rejecting the record in case of Sharrar and others against Detrick and others, in equity. That record shows that the bill relates to the same subject of this suit, but as it did not set out a case entitling the plaintiffs to relief, the defendants demurred. Among the causes for demurrer were misjoinder of parties, full and adequate remedy at law, bar of the Statutes of Limitations to part of the claim, and want of jurisdiction to another part. The judgment is, “ that said demurrer be and is sustained, and the said bill be'dismissed with the costs to be paid by the plaintiffs.” Is this decree a dismissal of the bill upon its merits ? If so, by all authority, it is conclusive between the same parties upon the same matter directly in question in another court.

It has been stated, as a general rule, decision in favor the defendant on a demurrer at law or to a bill in equity, is simply a decision that the plaintiff has not set forth a case entitling him relief or compensation. It does not, and in the nature of things, cannot determine that he has no case, and shall not have- relief a subsequent proceeding on grounds different from those disclosed in the first. Several persons joined in a petition which was dismissed on demurrer, the judgment being that the’ demurrer be sustained, the petition dismissed, and that defendant recover his costs. Afterwards, one of the same plaintiffs filed a petition for the same subject-matter valid and sufficient to entitle her to relief. The former recovery was set up as a bar. But the court said: “ That judgment merely pronounced the former petition insufficient. It decided that the case as presented by that petition was without merit, and to that, extent only can it be said to have been a decision upon the merits. But the facts set out in the subsequent case have never been litigated or passed upon in any way, and it is therefore illogical and an abuse of'terms to say that the judgment relied upon is a judgment upon the merits of the present case, and for that reason must operate as a bar to any relief:” Birch v. Funk, 2 Met. (Ky.) 544. A judgment sustaining a demurrer to a petition for want of form- and of proper parties merely decides that the suit cannot be sustained in that form against these parties, and it is not' a bar to another suit for the same cause of action: Nickelson v. Ingram, 24 Tex. 630. When it appears ’ that the bill was dismissed on the hearing of the case, it is to be inferred that it was upon the merits; but when not upon the hearing, if the record does not show, and it is not proved that dismission was upon the merits, there is no bar : Loudenback v. Collins, 4 Ohio N. S. 251.

At law a judgment of nonsuit is no bar to another action for the same cause. So, if the plaintiff mistake the form of his action and his writ be adjudged bad on demurrer, the judgment will not bar an action in proper form. So, if the plaintiff mistake his cause of action and the defendant demur and have judgment, this will not preclude a fresh action setting forth the right cause. So, also, if the declaration be demurred to and judgment sustaining the demurrer because of the insufficiency of the declaration, it will not estop the plaintiff to bring another action to enforce the same right; because the case as stated in the last declaration was not tried in the first. In these and like cases, if the defendant plead the former recovery in bar, the plaintiff may reply that it was not obtained on the merits: Wilbur v. Gilmore, 21 Pick. 250. Like, principle should apply wherever a decree in equity not obtained on the merits is pleaded in bar to an action.

We are of opinion that the record offered showed on its face that the decree was not on the, merits, even of the case presented. But further, the gravamen of the charge in the bill was an alleged verbal agreement between Jacob Sharrar and Jacob Detrick. As set out, it was insufficient to entitle the plaintiffs to relief. In this suit they claim an equitable title under a written contract, and rest thereon — they allege no oral agreement. In every view the merits of the claim in this suit were not passed upon in the former.

Judgment affirmed.