Troup v. Troup , 87 Pa. 149 ( 1878 )

Mr. Justice Paxson

delivered the opinion of the court,

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, cerium est quod, eertum 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 he 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 Shindle testifies: “I had a talk wdth Emanuel Troup in his lifetime whilst Oliver was living on the land. He told me the fence, where the stones lay, was the line; I know where the fence was; it begins on Hartman’s line and runs across to the other corner between him and his son Oliver. He told me from the end of that stone fence the line run to Haldeman’s line, between him and the line of Oliver. Fruit trees were planted by Oliver while he was living there; I helped to put up the house; it was put up in March 1869; Oliver moved there that summer; he (Emanuel) told me he took a wagon from Oliver for $25 for the land he bought from his father; he was farming it at the time he bought it from his father, and living in the house that was removed before it was removed. Can’t tell when the old man told me he got the wagon in payment. * * * I saw the wagon in the old man’s possession afterwards.” Josiah Danner testifies: “ Oliver was fixing the garden fence on this land. Old man Troup came there whilst we were at work and invited me to his house; this was after the new house was built. I agreed to go with him, and Oliver went also. There was a path cut from Oliver’s house to the old man’s. As we passed up we came to the corner of the stone fence; we stopped; I then asked the old man Troup where Oliver was to have his land; then he told me the line was from the stone fence to Tobias Hartman’s line, and from thence to a white oak tree at a corner, and then he showed me the line from the stone fence to Jacob Haldeman’s land. There was a fence above, and this line was to be straight with that fence to Haldeman’s line; the two fences formed a corner where we stood; then when it comes to Jacob Haldeman’s line it ran down to the same white oak "tree.” Witness shown paper, and continues: “This presents exactly the lines that the old man showed me. Oliver was present. I know where the oak tree is, and I walked around the lines; Emanuel Trout went with me, and showed me the lines, and they compared with the lines on the draft. * * * Whilst Oliver lived there he built a hog-pen for the hogs, and a kind of shed-roof attached to the hog-pen, and paled or fenced up the garden and planted fruit trees, pears and apples. * * * I helped him some at the cow-stable. Andrew Hutton was the carpenter at the hog-pen. He went to live there after he bought the land; put up the house after he bought it. * * * The time we were looking over the land the old man said Oliver had given him a wagon for $25, as part pay for the land, and the old man he said that it was in pay of the land. I was there when the old man and Oliver both had corn in the land. I know where the old man had his, and Oliver had his. Oliver planted in the way or direction of the stone fence; the old man planted on the other side and ran the way towards the Haldeman line; a space was left where the line was to go along; I saw Oliver cultivating his on the side he bought.” To rebut this evidence, the defendants called but a single witness, Josiah Danner, but whether the same Josiah Danner who had been previously examined for the plaintiff this record does not disclose. He testified to nothing material beyond a conversation with Oliver in which the latter saidi‘ he had got it (the land) five years for clearing it off; this was said after the house was built. He did not tell me he had it for five years and afterwards got it from his father.” The plaintiff then recalled Josiah Danner, who said: “ When I was living with Oliver, in the conversation that was had between Oliver Trout and the old man and myself, I said ‘ How is it about this contract about the farming of the land ?’ Oliver said he had the contract between him and the old man about the land for a length of time, I can’t say how long. He said that contract between him and his father since he bought it was nothing any more; was disannulled. I then said to the old man Troup, ‘Is that so ? ’ He said‘That is our agreement.’” This explanation of the matter, looking at all the circumstances of the case, appears reasonable. It is consistent with the other facts in evidence, and upon a bill for specific performance would not be without weight with a chancellor. We must not overlook the fact that the contract is in writing and undisputed, thus removing all reasonable grounds of suspicion as to the entire good faith of the claim. We think there is such a preponderance of evidence as to entitle the case to go to a jury. If possession was delivered under the agreement, the lines designated, improvements made, and a part of the purchase-money paid, of which there is evidence, it is sufficient to take the case out of the statute. The jury must pass upon the facts, and it was error to withdraw the case from their consideration.

The court did not pass upon the sufficiency of the tender, nor whether a tender before suit was necessary. As the record stands at present, these questions are not properly before us. It will be for the court below to decide them under the facts as they shall be. presented upon another trial, as well as to consider the question whether the case is one for a conditional verdict.

The judgment is reversed, and a venire facias de novo awarded.