McGibbeny v. Burmaster

The opinion of the court was delivered, by Agnew, J. The evidence in this case to take it out of the Statute of Frauds and Perjuries was clearly sufficient to satisfy the conscience of a chancellor, and therefore to be submitted to the jury. About the time of the taking of possession by the defendant, the plaintiff declared that he had sold the property to the defendant, giving reasons why it was advantageous to him to sell it. The defendant their erected buildings and improved the property, at an expense far beyond the value of the land itself. The quarter acre bought by defendant was cut off from1 the plaintiff’s land by a line surveyed across it at one end. The plaintiff himself was present and assisted defendant in a part of his work at the building. This was in the fall of 1861. In 1862, a surveyor was brought to run the lines for the purpose of making the deed. The plaintiff came there, pointed out his lines; the survey was made, and both he and the defendant together instructed the surveyor to write the deed accordingly. Having neglected to ask the sum to be written in the deed as [335] the consideration, the surveyor on the next morning saw the plaintiff and made the inquiry of him, and was informed by the plaintiff that he had sold the lot surveyed to the defendant for the sum of $50, and that he was ready to sign the deed as soon as the balance of the money was paid to him; at the same time handing to the surveyor his own deed to enable him to write the other. The deed was written accordingly, and produced by the witness in court, and, though not executed, plainly evidenced the terms of the contract. Now, upon this evidence it was impossible to doubt as to the fact of a contract of sale, its precise terms, the precise subject of sale, its boundaries and quantity, and that possession was delivered in pursuance of the sale and large and valuable improvements made upon the lot with the knowledge and assent of the plaintiff, rendering it inequitable to rescind the contract. The court below was therefore right in submitting the case to the jury, with instructions if they believed the facts to be in this way, to return a verdict for the plaintiff, to be released on payment of the unpaid purchase-money in a reasonable time. Judgment affirmed.