Burns v. Sutherland

Bell, J. The plaintiffs in error, by their sixth point, asked the court below to instruct the jury, “that the defendants had failed, in law, in making out a valid parol title to the land in dispute.” This the court declined to do; but added, “to enable the jury to find for the defendants, they must be satisfied that the defendants have made out, clearly, the facts necessary to bring the 106 case within the principles of law applicable to parol sales or gifts.” It is, certainly, the duty of the party who invokes the aid of the peculiar equity, administered in cases like the present, to establish, by clear, precise, and satisfactory proof, every requisite to take the particular transaction from without the operation of the statute of frauds; and a failure to do so, in any essential point, will defeat the alleged contract as a means of conveying lands. When such a failure occurs, it is the duty of the judge presiding at the trial of the cause to instruct the jury, .the party averring the oral sale had not made out a case in which a chancellor would decree a specific performance; Haslet v. Haslet, 6 Watts, 464; Robertson v. Robertson, 9 Watts, 42; Woods v. Farmare, 10 Watts, 203; but though he ought to examine the case, so as to assist the jury in estimating the nature, weight, and relevancy of the testimony, it is not his province to decide questions of disputed facts, where any evidence has been given proper for the consideration of that member of the tribunal to which, in a common law court, are properly referred litigated facts. Admitting every thing to be true which the proof tends to establish, it is for the court to say whether such a case as would induce a chancellor to rescue it from the blighting influence of the statute has been presented; but where any proof of circumstances, proper' and necessary for this purpose, has been given, the value of it is to be determined by the jury, under the admonition of the court, in regard to the equitable rules which have been established to direct and govern the determination. In this, as in all similar cases, it was incumbent on the defendants to show the alleged contract, and, clearly, what ivas the subject of it; what was the consideration upon which it proceeded, and that possession of the land in dispute had been delivered to and taken by their ancestor, subsequent to and in pursuance of the contract. But they were at liberty to make out these requisites by any mode of legal proof, sufficient to produce a clear conviction of their existence in the mind of the inquirer. Looking to the evidence introduced by them on the trial of the cause, for this purpose, we think the court below Avould have stepped over the line dividing its province from that of the jury, had it adopted the suggestion tendered by the plaintiffs’ sixth point; for there was, certainly, proof, if believed, of all the requisites I have adverted to as necessary to establish a parol sale of lands. Without attempting to recapitulate it minutely, it will be sufficient to say that Elizabeth Lauglilin testified to a conversation Avhich occurred at her father’s house, in the year 1815, in which old George Sutherland stated, that if his son 107 Alexander would go on and finish the new-hewed log house, then in process of erection for the father, as the son had agreed to do, he, the father, would give Alexander fifty acres of land adjoining the blockhouse tract, on the road between the witness’s father’s house and Potter’s mill. She, afterwards, heard George say he had got into his new house, which Alexander had finished off in first-rate style; that he had given Alexander fifty acres of land, and that Alexander had built himself a house and shop on it, and he hoped he would do well. This testimony, if true, establishes an agreement, founded upon a sufficient consideration, subsequently executed by performance of the consideration, by the son, and by a delivery of possession of the land by the father, in pursuance of the contract, followed by valuable improvements made thereon by the son. It is true this evidence is open to the remark repeated in Robertson v. Robertson, that the declarations of parties are the most unsatisfactory species of evidence, on account of the facility with which they may be fabricated, and the impossibility of contradicting them,, to say nothing of mistakes or failure of-recollection, which may totally alter the effect of the declarations. Still they are legal evidence for the consideration of a jury, to whom may be, properly, addressed the animadversions to which this kind of proof is obnoxious. But the testimony of Elizabeth Laughlin is strongly corroborated by other witnesses, and particularly by John Daley, who was called on to assist Alexander in raising a shop on the fifty acres. He says a dispute took place between the father and son, as to which side of the road the shop should be built on. It was terminated by the petulant exclamation of the father, that the son might place the shop where he pleased, as the land was his own. This was twenty-four or twenty-five years before the trial, and at that time the son had built himself a house upon the disputed tract. Seven or eight years after this, the father told the witness he had given Alexander fifty acres of land, pointing to where the son then lived. All the witnesses agree that the son took possession of this land, about the year 1815; that he cleared fifteen or twenty acres of it, built upon it a house, stable, and shop, such as were common in the neighbourhood ; and that he continued to reside there until his death, in the year 1886, after which his widow and family lived upon it for some time. Now, though there is testimony in the cause tending to disprove the alleged agreement between the father and son, and its results, surely the learned president of the Common Pleas would not have been justified in taking the whole case from the jury, on the ground of failure of proof, as he was requested to 108 do by the plaintiffs. But they further object, that the evidence does not ascertain, with sufficient precision, the locality of the tract claimed by the defendants; and the answer of the court to the third point submitted by the plaintiffs, on this subject, is assigned for error. The rule, that you must show what was the subject of the contract, is unquestionable. But to show this Ayith reasonable certainty is sufficient. It is not necessary that lines of separation should be actually run upon the ground, if from the agreement of the parties, and the distinct subsequent possession of the vendee, it is possible to ascertain the boundaries and quantity of the land sold; or, as was ansAvered by the court in this instance, the proof must be such as to enable the jury to fix the locality and boundaries, so as to direct how a surveyor may run it off from the rest of the vendor’s land. The proof here seems to me to be ample for this purpose. In addition to Avhat was stated by Mrs. Laughlin on this point, John Daley testified, George Sutherland told him he had given his son fifty acres lying on the north-Avest corner of his farm, adjoining lands of John McCoy, and the blockhouse tract. Barnabas Chase and William Sprouls assign to the disputed tract the same locality; and Thomas Frazier, a surveyor, pursuing this description, found no difficulty in running division lines, separating the fifty acres from the rest of the farm. He says it could not be .taken off in any other way so as to include the buildings. Indeed, none of the witnesses examined on either side seem to have had any hesitancy in pointing to the particular position of the fifty acres, which, according to Jane Frazier, was separated from the possession of George, the father, by a strip of woods; and the father’s last will speaks of them as fifty acres which Alexander had settled on in his lifetime. There is, therefore, no error in the answer complained of. The third error assigned avers the court failed to explain "tb the jury the law relating to parol sales and gifts of land. But we see no sufficient grounds for this complaint. Full answers were given to all the points submitted by plaintiffs, which embraced the principles they thought applicable to their case, and necessary to be brought to view in proceeding to its correct decision. If the counsel conceived any further instruction was proper to enlighten the jury, they should have called the attention of the court to it, and specifically prayed the instruction desired, for it has been more than once ruled that want of direction not asked for will not be deemed error: McClure v. McClure, 1 Barr, 374; Churchman v. Smith, 6 Whart. 146. In all cases much is left to the discretion 109 of the judge trying the cause, as to the extent of instruction required by the exigencies of the particular cause, where no particular direction is prayed for. It is impossible a court of error should know how the trial was conducted, or how much information was imparted to the jury, as to the principles which ought to govern it during its progress; and it may depend very much upon this how far the judge ought to elaborate his charge. In this very case, as we are informed, most of the decided cases having relation to the litigated subject were read to the jury, and fully commented on by the counsel, at the trial; and the court may, therefore, have correctly thought nothing further was required than answers to the points submitted. It is impossible for us to say in this there was error. Judgment affirmed.