Tuit v. Smith

Opinion, Mr. Justice Sterrett: Both parties to this action of ejectment claim under Sarah Smith, who purchased the house and lot in controversy in October, 1884, and, in consideration of plaintiff’s agreement to support and maintain her during life, etc., conveyed the same to him by deed dated August 29,1885. The record of that deed, together with plaintiff’s agreement and bond of even date therewith, was given in evidence, and relied on by him as evidence of title and right of possession. The defendant, on the other hand, relied on a prior contract of a somewhat similar nature, between Mrs. Smith and himself, not in the form of a conveyance or agreement to convey the property in controversy to him, but evidenced by a testamen [40] tary paper executed by her in October, 1884, wherein she devised the house and lot to defendant, “ for his kindness and care toward me in sickness and in health, in watchfulness and care during all my natural life, and at my decease the aforesaid property shall belong to the said Laura E. Smith, his heirs or assigns, with all rights, liberties, and hereditaments forever..... It is my will and desire that the said Laura E. Smith have possession of my house on the first day of November, 1884, and he take me with him, and that he take care of me as one of his own family.” It was admitted that, in pursuance of what is contained in the paper, and in accordance with the mutual understanding and agreement of both parties, the defendant went into possession and took Mrs. Smith with him as a member of his family. She selected her rooms in the house. They were comfortably fitted up for her, partly with her own furniture which she had before, and partly with furniture procured by defendant. She remained there as a member of the family until the following September, and then left without assigning any satisfactory cause for so doing. When this case was here in 1889, it was held, in an opinion by our Brother Gkeen, that the testamentary paper above referred to might operate as a memorandum of contract for the sale of land sufficient to comply with the statute of frauds, and, as such, it was admissible in evidence during the lifetime of the testator: that such a paper, without evidence of anything done under it by the devisee, cannot be treated as anything more than a will, revocable at the pleasure of the testator; but, when the testator has put the devisee in possession of the land, and the latter has complied with his part of the agreement, the devise loses its revocability, and must be treated as an executed contract: Smith v. Tuit, 127 Pa. 341. The defendant, on this trial, undertook to prove and did successfully show that he was put in possession of the property in controversy by Mrs. Smith, and that he substantially complied with his part of the contract by taking her with him and caring for her “ as one of his own family.” The plaintiff undertook to rebut the evidence thus introduced by defendant, but, aside from showing some slight annoyances and inconveniences such as are likely to occur in any ordinary family, the case made out by the defendant’s evidence was not [41] successfully assailed. Mrs. Sarah Smith, the old lady who conveyed the property to plaintiff, was his main witness; and, assuming her testimony to be true, there is nothing in it to justify her in rescinding the contract she made with the defendant, and on the faith of which he expended money in the improvement of the property. The witness was ninety years old, and testified in a rambling and incoherent manner, such as might he expected of one of her advanced years. In answer to the question, “ How did the defendant treat you while you were staying with them?-” her answer was: “Well; only sometimes he would take a spurt in ugliness; have a bad word, you know. He was just middling. I suppose he done the best he knew how.” Again; in answer to the question whether defendant’s wife abused her, she said: “ Oh, no, not particularly, any more than she wasn’t very much of a talker of a woman, nor she didn’t quarrel, nor nothing of the kind.” Again, in answer to the question whether the defendant offered to strike her, her reply was: “ Oh, no. If he had, he would have got a black nose.” Without referring at length to the plaintiff’s rebutting evidence, it is sufficient to say that there appears to be nothing in any of it that would justify a rescission of the contract in pursuance of which defendant was put in possession of the premises in controversy. In view of the insufficiency of plaintiff’s rebutting testimony, the court, in defendant’s first point for charge, was requested to instruct the jury “ that the plaintiff has shown no facts which would justify Sarah Smith in rescinding the contract contained in her will, and therefore he cannot recover.” We think this point should have heen affirmed. The plaintiff was certainly in no better position than Mrs. Smith would have been, if she had brought the action herself without having conveyed the property. The case may be regarded as a close one, but, on a careful review of the evidence, we are of opinion that it should not have been submitted to the jury. Judgment reversed.