Willey v. Day , 51 Pa. 51 ( 1865 )

The opinion of the court was delivered, by

Strong, J.

— This was an action of ejectment for the north half of lot No. 1186, in the Sixth Donation District. The record presents the singular spectacle of a recovery by plaintiffs upon a title they did not assert, and which they-used only to rebut evidence of a right by which the defendants claimed to protect themselves in possession. The ejectment was brought in 1861 by Horace Day, the ancestor of the plaintiffs, and after his death they were substituted for him. The title which they gave in evidence in chief was a deed from Charles Day to Horace Day, his son, dated February 24th 1827, and recorded on the 8th of March next following. Having then proved the death of Horace Day, after the suit was brought and their own substitution on the record as his heirs, they rested their case. It was not until after the defendants had proved a judgment entered against Charles

Day on the 29th of January 1827, kept alive until 1843 by writs of scire facias against the judgment-debtor, with notice to Horace Day, térre-ténant, and judgment on the writs and also a sheriff’s sale under the judgment to James Brawley, whose title afterwards became vested in the defendants, that any evidence at all was given of a parol sale to Horace Day anterior to the deed made to him on the 24th of February 1827. Yet the case was put to the jury exclusively on -the validity of a conveyance by parol, supported by what we regard altogether insufficient evidence. Neither the alleged contract of sale nor possession taken under it, followed by improvements made on the faith of it, was made to appear with any degree of distinctness. The evidence exhibits this state of facts: Horace Day attained his majority in 1825. Up to that time he and his father, Charles 'Day, resided in the state of New York. The father owned the entire lot No. 1186, and, with his son, removed to it either in the fall of the year 1825 or the year 1826. One witness testified that while they were resident in New York the father promised the son he would give him the half of the Sugar Creek lot if he (the son) would stay with him (the father) a year, to which Horace assented. Which half was not specified, nor does it appear whether the time during which the son agreed to remain with the father was to be before or after he came of age. That perhaps "is immaterial. But the contract, if made at all, was in its terms executory. ■ It did not purport to be the transfer of a present right. It contemplated a future assurance. Subsequently, and probably within a year, the parties removed to this state, and, according to the testimony of the next witness, the father showed him the line where they intended to have the division of the lot. The only other witness who testified upon the subject proved no more than an impression on his mind that “ the old gentleman told Horace if he would work with him a certain time right along, he might have the land.” He was to have the north part. This also was at best an executory contract.

Certainly it was not an immediate transfer of the ownership. We have sought in vain for any proof of an executed contract of sale or gift, anterior to the deed of February 24th 1827. There is some evidence that a line was run between the north half and the south half of the lot before the fall of 1826. There was a slashing part of the way through, though not the entire distance, but it appears to have been a line of intended division, not of one consummated. There is nothing to show more than an executory contract until the deed was made. Then, so far as we can see. the interest of the son in the land commenced. That was, however, after the judgment of James Brawley against the grantor had been entered. And even if there were adequate proof of a definite parol contract of sale, purporting to assure a present right, there is an entire want of evidence of any taking possession under or in pursuance of it. We cannot overlook the fact already stated, that the father, make a deed to the son for the north half on the 24th of February 1827. Whatever was done by Horace Day upon the lot conveyed to him after the deed was made, cannot be called action under the parol contract. It is accounted for by the ownership acquired by the deed. Now it is clear from the evidence that Horace did not reside, upon the north half before the deed was made. He lived with his father. And even afterwards, when he built a house for himself, he built it on the south half, thirty or forty rods from the dividing line. The testimony is that he worked for his father. One witness deposes that he chopped some on the north half in the winter of 1826-7, but whether before or after the deed was made does not appear. Another testifies that he was hired to the father in the summer of 1826, and that he and Horace worked some on the north half that summer. They chopped together sometimes, but Horace the'n lived with his father, and if working on the lot at that time is evidence of possession it was then as much in the father as in the son, for the father’s hired workman was thus engaged. This is all the evidence in the case of any possession taken by Horace Day before the deed was made to him. Under no ruling ever made by this court has such evidence been held suificient to be submitted to a jury, to allow them to find from i» a parol contract of sale executed. It is in fact no evidence at all of possession taken in pursuance of a contract. It is true we held in Richards et al. v. Elwell’s Heirs, a case not reported, that after a long period of years, during which the vendee in an alleged parol contract of sale had been in possession, he was not to be held to the same rigid measure of proof as that which is required to sustain such a sale more recently made. Lapse of time was allowed to supply want ’ of directness and distinctness of proof, but not to create evidence.

The language of the late chief justice, in reference to that case, was as follows: “ It seems to us there is evidence that there w^.s such a sale, that the price was paid, possession delivered by the vendor, and the control of the land held by the vendee, and those claiming under him, for about twenty-eight years before suit brought. Of some of these elements the direct evidence is quite insufficient, but when corroborated by a long control of the land that cannot otherwise be accounted for, it becomes quite convincing.” That case was a second time in this court, and our opinion was delivered by Agnew, J., reiterating and enforcing what we first decided. We adhere to the rule thus laid down. Rut had the vendees in that case been out of possession during the long period that elapsed after the alleged parol contract, and before the ejectment was brought, time would have raised no presumption in their favour. It is long possession in pursuance of a contract that corroborates defective proof of its existence. The longer such possession, the more difficult is it to be accounted for on any other theory than that there was a contract executed. Rut in the case before us the presumptions are the other way. The possession of Horace Day, whatever it was, is accounted for by the deed to him. That gave him a right to possession until 1843, when the land was sold under a judgment superior to the deed. He then immediately left, declaring that he had lost the land. He did not even wait to be dispossessed by an execution, nor did he set up any right in virtue of a parol sale prior to the deed. He remained out of possession from 1843 until 1861, asserting no claim. Meanwhile the property had repeatedly been sold by the purchaser at sheriff’s sale and his grantees, so far as it appears without any notice of an outstanding parol title. Under such circumstances it is not easy to see how lapse of time can avail him or his heirs to supply any deficiency of proof. We hold, therefore, that both the first and second points of the defendants below should have been affirmed, and that the jury should have been instructed that neither the proof of the contract nor that of possession taken under it was sufficient to justify a verdict for the plaintiff.

Judgment reversed, and a venire de novo awarded.

Thompson, J., dissented.