Dill v. Westbrook , 226 Pa. 217 ( 1910 )

Opinion by

Mr. Justice Stewart,

This was an action of ejectment for certain undivided interests in two adjoining tracts of land containing together 564 acres, in Buffington township, Indiana county. All parties to the controversy claimed under and through Matthew Dill, who died in 1847. Plaintiffs are the children of George Dill, son of Matthew, to whom was devised a life estate in the land upon the death of the widow, with remainder, upon the death of both George and James Dill — the latter also a son of Matthew, and given a life estate upon the death of George — to the children of George and James jointly. The defendants are the children of James, who claimed to hold under a deed to James from his brother George, who they assert derived title to the land by parol gift from his father several years before the latter’s death. The will of Matthew Dill bears date April 3, 1845, and the item in it bearing on the controversy is as follows : “ I give and bequeath to my son George Dill after the death of his mother, all my real estate, for life, and at his death, to James C. Dill for life; and after the decease of George and James Dill, to their children, share and share alike.” Plaintiffs having shown the death of both George and James, rested their case on the devise contained in the will. The defense set up was twofold: first, the alleged parol gift from Matthew to George; and, second, adverse possession for more than twenty-one years before the bringing of the suit. On neither of these propositions, as we shall show, were defendants entitled to go to the jury. Since they had the benefit of a submission on both, and lost on both, it will be unnecessary for us to consider any of the twenty-five assignments of error which confront us in this appeal. The discussion may be confined to the single question of the sufficiency of the evidence adduced by the defendants to raise an issue of fact on either of the positions taken.

In 1850, three years after the death of his father, George Dill instituted proceedings to perpetuate testimony in support of a claim he then made that his father had given him the land. The testimony of four witnesses, all since dead, was taken, and this testimony was offered and admitted on the trial of the present case. It was supplemented by the testimony of a single living witness. It will be sufficient to indicate briefly the facts appearing in the testimony which were relied upon to establish the gift. Benedict Marsh testified that he was the tenant on one of the tracts in dispute during the last few years of Matthew Dill’s life; that he had several interviews with him in regard to leasing the premises; that on the last occasion he found him sick in bed,.and when he made known his business the old man said, quoting the words of the witness, that he had nothing at all more to do with it, for he had thrown it all into his son George's hands, for him (George) to do with it as he pleased, adding, “ just as you and him make your bargain I am willing to abide by it.” Further on this witness says that he received the lease from George, had continued in the occupancy of the leased premises until the time he testified, and that he had made certain improvements thereon. Samuel Conrad testified that Matthew Dill, a few months before his death complained to him that George was requiring Marsh (the first witness, lessee of one of the tracts) to pay tax on too much of the land.;, that he thought George should pay taxes on 100 acres of the tract in relief of Marsh, inasmuch as George had certain advantages on the tract that Marsh had not; that he had talked to George about it but that he would give him no satisfaction. The old man requested the witness to speak to George in regard to it, saying in this connection that for his part he had nothing at all to do with it, that he had given it to George, that it was all in his hands, and that he would like him to do what was right. This witness also testified to improvements made by Marsh which had enhanced the value of the property. Alexander Patterson testified that in 1844 he rented from Matthew Dill a house on one of the disputed tracts; that in the spring of 1846 he applied for a renewal of his lease and Matthew told him that if he wanted to rent the place again he would have to rent it from George; that he had given it to George, and that he had nothing to do with it; that he had given the Reever tract to George. William Doke testified that after Patterson had vacated the premises he leased them from George Dill, and that while he was there George had erected a barn on the tract. William S. Conrad testified to a conversation he heard between Matthew Dill and his father, which in substance and effect was the same as that testified to by Samuel Conrad, the previous witness. While what we have thus given is an abridgement of the testimony, it omits nothing that could have any bearing on the one question before us. Its insufficiency to overcome the bar of the statute of frauds and perjuries is apparent. When such an attempt is made, it is necessary, first, to establish the gift or contract by direct, positive, express and unambiguous evidence; and, second, the gift established, to show a case within the equities of the statute. “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 substance 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 declaration of one of the parties:” Ackerman v. Fisher, 57 Pa. 457. “ In no case can a parol conveyance of land be taken out of the statute of frauds, but by a particular equity arising from the payment of purchase money, or, what is much the same, expenditure in improvements made with money of the donee, of which it would be a fraud in a donor to deprive him; and such an equity cannot be contended by a volunteer. A parol gift to a son, which has induced no such expenditure, is as much within the statute as if it were to a stranger:” Eckert v. Mace, 3 P. & W. 364, note. The evidence falls far short of either of these requirements. With respect to the gift itself, not a single witness testified that he was present when any gift was made; not one testifies to having heard it spoken of between father and son; no witness brings them together face to face with respect to the transaction. We have nothing but loose declarations made by the father to the effect that he had turned over the property to George, and that he himself had nothing to do with it; but never an admission of an obligation or engagement on his part to vest the title in George either in his lifetime or at his death. If the conversations testified to can be construed into so many acknowledgments that he had made a gift of the property to George, they are certainly open to a very different construction consistent with the old man’s continued ownership. Especially would this be so if the situation and circumstances be considered in connection therewith. At the time he made these declarations Matthew Dill was an old man and had laid aside the cares of business. He was making his home with his son George who was farming the Mansion place, and who, according to the testimony of these very witnesses, was having in his charge the general management of his father’s affairs. What more natural than that under such circumstances he should intrust to George the selection of tenants for his other several tracts of land, the looking after their leases, and attending generally to the business in connection with the farms. A fair and natural construction of the admissions testified to would give them no larger meaning than that the old man had turned over the property to George to manage as his agent. Certainly such construction is quite as natural and reasonable as the other that is contended for. It would be waste of time to enlarge further on this branch of the case. The giving was not witnessed by anyone; whether it was ever made, is at best left in uncertainty; if made, nothing appears as to what, if any, conditions were annexed, or what, if anything, was engaged to be done to give it effect. Nor is it shown that possession was ever taken pursuant to the alleged gift. “It is not alone sufficient for the party claiming the benefit of a parol contract to prove that he is in possession of the premises; but in addition to distinct and satisfactory proof of the contract, he must prove most clearly that he took the exclusive possession in consequence and in pursuance of the contract. Of this latter requisite there should not be a shadow of doubt resting upon the mind of either court or jury:” Robertson v. Robertson, 9 Watts, 32. But assuming the gift to have been established, what equity has been shown to overcome the statute? At the time, George was in possession of the home farm as tenant. Suppose the possession by the tenants to whom he leased the lands in dispute was his possession, and suppose further that improvements were made during their tenancy, at whose expense were these improvements made? It will not do to say that an inference arises that George contributed the money. Such fact, if it be a fact, must affirmatively appear, otherwise no equity which would call for an enforcement of the contract can arise. Here again the evidence falls short.

With respect to the other branch of the case it is only necessary to call attention to the recitals in the deed from George to James Dill, dated June 14, 1855. This deed purports to convey a fee simple in the disputed tract. Aside from the matter of the parol gift, George under his father’s will had a life estate in the land, and this interest of his certainly passed by the conveyance. Any adverse possession on part of George to avail here must have commenced in the lifetime of Matthew Dill. It is alleged that it did then commence, and it is claimed that the possession under George’s deed to James tacked to George’s earlier possession. Now, while it is true that as early as 1850, three years after his father’s death, George was in possession and was then claiming to hold adversely, yet from his deed to James, the deed under which defendants claim, it clearly appears that he had abandoned such adverse claim and was asserting a title derived under his father’s will. Following a description by metes and bounds of the land conveyed — the subject of the present controversy — this occurs in the deed: “Being two tracts combined together. And the one being surveyed to Alex. Carnahan and Edward Hanna on a warrant bearing date 3 May, 1798, and the other surveyed to Alex. Carnahan on warrant dated 26 March, 1799, which said tracts of land became duly vested in the said George Dill by law, a reference being had to records of Indiana county and the last will and testament of Matthew Dill, deceased, will more fully and at large appear.” There is no mistaking the significance of this recital. It is a clear, unequivocal declaration that the grantor was then holding under the will of his father, and not by virtue of any contract of gift or sale. It was a positive disclaimer and abandonment of his adverse holding, and broke forever the running of the statute of limitations which it is claimed had begun in his father’s lifetime. It is a settled principle that if the occupant of land admits in writing the land on which he lives belongs to another, it is a voluntary submission to the title of the other, and a surrender of any rights acquired by a prior possession. Nothing can more effectually interrupt the running of the statute than an express acknowledgment of the owner’s title. So much is ruled in Miller v. Keene, 5 Watts, 348; Criswell v. Altemus, 7 Watts, 565; Sailor v. Hertzogg, 2 Pa. 182; Ingersoll v. Lewis, 11 Pa. 212.

A verdict for the defendants on either ground set up could not have been sustained, and the case therefore called for binding instructions.

Judgment affirmed.