McClure v. Jones

Opinion, Mr. Justice Green : The defendant claimed title to the land in dispute under a verbal contract of sale for the premises, alleging that she was to pay $275 to the plaintiff as the consideration money of the purchase. ' To prove performance of the contract on her part, she gave in evidence a number of receipts for different sums of money signed by the plaintiff. The first three of them, given in 1866, 1868 and 1871, respectively for $70, $12 and $60, purported to be on account of purchase money of a house and lot, which, for the present at least, may be conceded to be the premises in question. The remaining twelve of them, all purport to be for rent for what under all the evidence must be conceded to be the same premises. These writings are necessarily and materially inconsistent with each other upon their face. Those which relate to purchase money cover the time from November 7, 1866, to July 12, 1871. Those which relate to rent cover the time from March 1, 1872, to October 1, 1874. The first three tend to prove a sale, the last twelve tend to prove a renting. They — 558 — are all between tbe original parties to tbe contract, and this action is between tbe same parties. Tbe defendant gave them all in evidence.! She was permitted to, and did, testify in contradiction to tbe last twelve of tbe receipts, saying in substance tbat she never paid tbe money for which they were given, as rent, but- as purchase money under the original contract of purchase. When tbe plaintiff offered to testify in explanation of tbe receipts for rent, tbat it was because tbe defendant was unable to complete her performance of tbe original contract of purchase, and that tbat contract was rescinded, also by verbal agreement, and a new contract of renting was then made, and tbat tbe subsequent payments were all made as rent and not as purchase money, tbe offer of proof was objected to as incompetent, on tbe ground tbat tbe title to tbe land bad become vested in tbe defendant by entry and improvement and could not be divested by any agreement or act in parol. Tbis view was sustained by tbe learned court below and tbe offer of proof was rejected. Tbe same view was .expressed in tbe charge and was applied to tbe entire case of tbe plaintiff as developed in several assignments of error. We think there was error in tbis action of the court below, and for various reasons. In tbe first place tbe plaintiff’s offer of proof was in accord with the- written receipts which were given in evidence by the defendant, while her own, merely oral testimony, was in contradiction of them. Tbe learned court seems to have held tbat tbe original contract for tbe sale of tbe land by tbe plaintiff to tbe defendant, was a written contract established by, or consisting of, tbe first, or first three, receipts; and, having adopted tbis theory it was applied throughout, regardless of the fact tbat tbe remaining twelve receipts were also between^ the same parties, for tbe same premises, and entirely hostile to tbe theory of a sale, at least from tbe time tbe first of them was given. On tbe writings then, considered by themselves alone, and all being of equal grade as media of proof, tbe defendant’s case was contradictory of itself, and there was quite as high authority upon tbe written proofs alone for holding that, even if tbe contract was originally a sale, it became by the subsequent written agreement of tbe parties, changed to a contract of renting. These receipts for rent were as much a part of the proof of tbe de — 559 — feudant’s claim of title as were the receipts for purchase money. They were in evidence and required interpretation. They certainly conflicted with the claim of title by sale, and being later in time than the receipts for purchase money, were perfectly legal evidence of a change in the original contract from a sale to a lease. This view does not seem to have been considered at all, and yet it seems to us of controlling force. This being the state of the written proofs, the defendant was allowed to testify in contradiction of the receipts for rent and give mere oral proof, and the plaintiff was not permitted to give the same kind of testimony in support of the writings. This is certainly in reversal of the ordinary rule applicable in such cases, and for this alone the judgment would have to be reversed. But we think there was also error in applying the theory that because a complete title had vested, a subsequent rescission could not be proved by parol. It must be observed that the defendant’s title, which was really in parol in its origin, had never become perfected by performance, and therefore was only an equity depending upon the amount of purchase money paid. While it remained in this condition, uncompleted by full payment, it was clearly, under the authorities, in an action between the original parties, subject to proof of subsequent rescission by parol. Thus, in Boyce v. McCulloch, 3 W. & S. 429, it was distinctly held that a written contract for the purchase and sale of land, may be rescinded by a subsequent parol agreement of the parties. It is true, this was ruled in an action by the vendee against subsequent purchasers from the vendor, without notice of the articles; but it was a case of express written contract of sale, followed by possession of part of the land; and, in the course of the opinion by Kennedy, J., the general doctrine applicable was thus expressed: “ No doubt if evidence had been given showing that the articles of agreement had been canceled, or actually given up for that purpose, or such possession as Boyce had, had been surrendered in pursuance of the agreement to rescind the articles, it would have made the case perfectly clear for the defendants; because it might have been considered, even at law, as amounting to an actual rescission of the agreement contained in the articles.” In the present case, while the defendant did not go out of the physical possession of the premises, she certainly — 560 — did change the legal character of her possession, if she entered into a relation of tenancy to her vendor as landlord, and paid rent for the privilege of occupying the premises. This was what the plaintiff alleged and offered to prove and his offer ■was supported by the writings which the defendant held and gave in evidence. In Dayton v. Newman, 19 Pa. 198, we said: “An equity under written articles may be released by parol; ” and, in Garver v. McNulty, 39 Pa. 485, Thompson, J., said: “ No doubt but that unexecuted articles for the sale and purchase of land may be rescinded by parol, so that in equity no specific execution of them could be enforced or a recovery be had in ejectment.” Judge Thompson said further, referring to the facts of that case, “ But when the title has passed, a different rule necessarily exists; ” and it was this which induced the court below to exclude the plaintiff’s offer of testimony in supposed conformity with the decision above quoted. An examination of that case however shows that its circumstances were entirely different from those of the present. The title of the vendee in that case was acquired under an instrument of writing which we held to be an absolute conveyance, completely executed, of the grantor’s title, with the same effect in all respects as if it had been in form, as it was in legal effect, an ordinary deed in fee simple. Of course, upon this view of the case, the title' having entirely passed, it could not be revested in the grantor except in conformity with the statute of frauds, and this was expressly stated in the opinion. The doctrine that unexecuted articles, although in writing, might be rescinded by parol was recognized and affirmed. So too, in Bowser v. Cravena, 56 Pa. 132, there was a written contract of sale which, however informal in its language, was in legal effect a present actual conveyance of the land in question, followed by a long continued possession and improvements by the vendee. We held, repeating what had been held in the same case, in 4 Pa. 259, that the title passed by this instrument and therefore could not be divested or aliened except by a contract in writing. Both opinions were delivered by the same judge, Thompson, J., and in both he recognized the difference between an actual conveyance of the title by writing, and unexecuted, articles or a mere parol sale. The — 561 — case of Lauer v. Lee, 42 Pa. 165, was referred to in the opinion in Bowser v. Cravena, and in that case also, the opinion was written by the same judge. There the sale was by parol and the first receipt for the purchase money was for $100 “on account of house and lot in Ashland.” There was also proof of possession and improvements, and in all these respects the case corresponds very closely with the present. On the trial, the vendor offered to prove that the $100 paid on account of the land was afterwards by mutual consent carried to the credit of the vendee on a separate account for merchandise sold him. This was objected to and rejected, and upon error assigned the court below was reversed, Thompson, J., saying: “ It has been settled that an executory contract for land may be rescinded by parol: Goucher v. Martin, 9 W. 106; Boyce v. McCulloch, 3 W. & S. 429. But it must be evidenced by acts accompanying the rescission which leave no doubt of the intent, such as canceling the agreement or removing from the possession, when the contract rests only in parol. Alone, the proposed testimony might not be sufficient evidence of rescission, unless it was the only evidence of part performance, which it was not. But it was clearly evidence against the claim for payment of purchase money by the defendant. If a payment made were afterwards devoted to another account it ought not to be set up as performance against the plaintiff.” In the present case the offer was to prove that the previous parol contract of sale was rescinded in 1872, when the payments for rent commenced, and that the subsequent receipts were for sums of money paid as rent for the property. This offer does not specifically say that the prior payments were to be credited as rent, but as that would be the necessary legal effect if the original contract was rescinded and changed to a contract of leasing, this defect in the offer would not impair the efficacy of the offer as it was made, especially as it corresponded with the terms of the written receipts subsequently given. To sum up the whole matter, the original agreement was a verbal contract for the sale of the premises for $275. In part performance, the defendant proved that she had paid, within the five years following, $142 on account of the purchase money, and gave written receipts in evidence iu support of her assertion; and she further gave in evidence written receipts — 562 — showing that from January 1,1872, to October 1,1874, she had paid rent for the same premises at the rate of $3 per month. The plaintiff offered to prove that the contract of sale had been rescinded and a contract of leasing substituted and was not permitted to do so, which in our opinion was error. These views sustain the first, fifth and ninth assignments óf error. We sustain the second, because the purchase by Sidles was from the plaintiff, and must be assumed to be for whatever interest he had in the premises. It was in no event a purchase from the defendant and therefore the $100 paid by Sidles cannot be credited on the money due by the defendant to the plaintiff. We sustain the third assignment, because, while the payment of taxes is not conclusive of title, it is some evidence, and when it concurs with other circumstances, is entitled to consideration. The fourth assignment is not sustained, because^he defendant if she made improvements under her parol contract of purchase, had a clear right to prove that fact in support of her claim of title. We sustain the sixth assignment because it was an offer to prove the plaintiff’s version of a conversation as to which evidence had already been admitted in favor of the defendant. The seventh and eighth assignments are sustained, because they are offers to prove the subject matter of the parol contract, and as this is not defined by any writing with exactness it is a subject of parol proof on both sides. The first receipt for purchase money does not assume to describe definitely the property purchased, and, whether the whole or a part only of the ■Cooper lot was sold, the fact is equally consistent with the receipt. Judgment reversed and venire de novo awarded.