Moss v. Culver

The opinion of the court was delivered, by Agnew, J. — The first and second assignments of error do not conform to the rule requiring the points to be set out in totidem verbis. The 3d and 4th, however, embrace all the material questions in the cause. The contract for the exchange of farms between Benjamin Moss and Wesley Culver was sufficiently proved. The testimony of Joel R. Culver brought the parties face to face, not only in the fact that he was the authorized channel of communication between them, but by actual presence also. The agreement to exchange was direct, positive, express and unambiguous ; its terms clearly defined, and the subjects of it identified. Wesley Culver was the equitable owner of a tract of 140 acres of [423] land bought of Benjamin Moss, on which he had paid all the purchase-money except a small sum. Benjamin Moss was the owner of a tract of 50 acres of land. Wesley Culver married a daughter of Moss, and went into the house on the 50 acres. For family reasons Moss desired to get back the 140 acres he had sold to Culver, and had been endeavoring to exchange the 50 acres for the 140 acres; but failed. He then sent Joel R. Culver to see his brother Wesley, and persuade him to exchange. Before Joel started he asked Moss how he wanted to trade, and what proposition he should make to Wesley. Moss said, I want you to go down and offer him that lot where he lives, even up, for the 140 acres, and tell him I will make him a general warranty deed for it, in lieu of that'I was to make for the 140 acres. Upon these terms, the exchange was finally made, with the additional provision that Wesley should give Moss a sleigh in satisfaction of the balance of purchase-money unpaid on the 140 acres. Thus the terms of the exchange were clear and unambiguous. The subjects of it were equally well defined, the tracts being separate well known parcels of land, given each for the other, without the necessity of a survey, or other act to ascertain or identify them. The exchange was carried fully into execution, even to the tender of the warranty deed to Wesley Culver, but which he foolishly rejected on the ground that the terms 50 acres strict measure would not embrace (as he supposed) two or three acres additional contained in the tract. Benjamin Moss got back the tract of 140 acres, and has since held it and conveyed parts of it away. Wesley Culver has remained in the exclusive and undisturbed possession of the 50 acres for almost twenty years. The tract has been assessed to him, and taxes paid by him during all this time. The contract, as proved by Joel R. Culver, was strongly corroborated, and mutual performance fully proved by other witnesses-. Under these circumstances the contract and the facts of the exchange were properly submitted by the court to the jury, and if believed were sufficient to take the case out of the Statute of Frauds and Perjuries. There was not such a conflict of evidence raised by the testimony of Lucy Wilkinson the daughter, and Daniel Moss, the son of Benjamin Moss, as justified a withdrawal of the case from the jury. Their statement as to a different arrangement about the 140 acres, and the permissive occupancy by Wesley of the 50 acres, was strongly contradicted by the act of Moss himself in making the deed to Wesley for the 50 acres. The church trial and the deed strongly repelled any idea of a tenancy. Nor are we convinced that there was not sufficient evidence of the change of the character of Wesley’s posssession of the 50 acres at or immediately after the exchange. Indeed there was no satisfactory evidence of his tenancy of the tract or of the terms under which he held possession of it before the exchange. Joel R. Cul [424] ver testifies that after Wesley’s marriage to Moss’s daughter, he went into possession of the house on the 50 acres — that Moss told him to move into the house. On the other side there was no proof of a specific tenancy. Daniel Moss said he knew that Wesley went on to the place — that they all worked together there that summer. Jonah De Long said all he knew was that Daniel Moss, Wesley, and his uncle (Benjamin Moss), worked together, and he thought they divided in some way or other. Certainly this is loose evidence of a tenancy of the entire tract by Wesley, and scarcely justifies the complaint, that the judge submitted a theory of his own without evidence, as to the tenancy being confined, possibly, to the house. Nor is there any force in the expressions— “ the lot of land where he lives” — “ the land he now lives on.” They were simply descriptive of the tract exchanged, and not of the character or extent of Wesley’s possession of it. But assuming that previous to the exchange Wesley had a permissive pos-, session.of the entire tract of the 50 acres, so as to constitute a tenancy at will, still the evidence of a change in the character of the possession was ample. It was exclusive on the part of Wesley for about twenty years, during which time the tract was assessed, and taxes paid by him. He paid no rent and none was demanded, and although the tract lay within a short distance of Moss’s residence, the possession of Wesley was undisturbed. .On the other hand there is no doubt of the exclusive possession and Control by Moss of the 140 acres, and his conveyance of part of it. It is true, as has been often said, there is no difference between a parol sale and an exchange in regard to the requisites to take it out of the Statute of Frauds and Perjuries. A clear, explicit and unambiguous contract, and a taking of possession under and in pursuance of the contract, are as much requisites of a parol exchange as of a sale. But there is a marked difference in the evidence which establishes the possession. A sale is confined to a subject coming from a single side. It has no relation to, or dependence on any other subject. The evidence of possession taken of it is therefore confined to the single subject, and if not. taken in a reasonable time, or so as to make it doubtful whether it is attributable to the contract, the parol sale is not taken out of the statute. But an exchange necessarily has a subject on each side which stands related to the other. One is the representative of the other, so much so that the law implies a contract of warranty by the act of exchanging. If therefore the evidence shows a clear, unequivocal, and complete taking possession of one of the subjects of an exchange, by the'party owning the other subject, it strengthens the evidence of a possession taken by the opposite party of the corresponding subject. Evidence of possession that might seem weak and inconclusive in the case of a párol sale, is thus made clear and convincing in the case [425] of an exchange. This is not new doctrine, hut has received the sanction of this court in at least two decided cases: Miles v. Miles, 8 W. & S. 135; Reynolds v. Hewitt, 3 Casey 176. In the present case, if the change of the character of Wesley Culver’s possession of the 50 acres, from that of tenant at will to that of owner, might be thought, when standing alone, in a slight degree doubtful, under the evidence, it is rendered perfectly clear by the evidence of Benjamin Moss’s possession and absolute control of the 140 acres received in exchange for the former. Even in the case of parol sale or gift a prior tenancy is not an absolute bar to proof of a change in the character of the possession: Aurand v. Wilt, 9 Barr 54. In such a case it is said that an express surrender of the tenancy, and a resumption of the possession under the contract will suffice. Upon the whole ease we discover no error, and the judgment is therefore affirmed.