Derr v. Ackerman

Opinion by Mr. Justice McCollum, In 1892 Simon Ackerman resided upon and had an estate by the curtesy in the land in question. He was then indebted to [595] Catherine Derr in the sum of $1,400 for which judgment was entered against him on the 25th of April, 1892. On this judgment his estate in the land was sold to John H. Derr, who, having received from the sheriff a deed of it, instituted proceedings to obtain possession. The defendants, claiming that there was a parol sale of the estate to them prior to the entry of the Derr judgment, were allowed to intervene for the protection of their interests in it. On the trial the defendants presented their evidence of a parol sale and of what they had done in pursuance of it. The court submitted the evidence to the jury with instructions to the effect that if they credited it they should find for the defendants. The verdict was in their favor, and from the judgment entered upon it this appeal was taken by the plaintiff, whose contention is that the evidence was insufficient to clothe the defendants with a legal or equitable title to the life estate. The witnesses to establish the sale were Simon Ackerman, his' son Irwin, and his daughter Ella. They testified that the former, sometime between January 1, and April 1, 1892, offered to transfer his estate in the land to his children if they would assume and pay his indebtedness to Zimmerman for money expended in improving it, and that on or about the first of the last mentioned month they accepted his offer. The offer and the acceptance were verbal and constituted the agreement of the parties. Nothing appears to have been done in pursuance of it until October of the same year when Zimmerman received the note of the children for their father’s indebtedness, and re-' lieved him from further liability on account of it. This was the first notice or knowledge that Zimmerman had of the arrangement between Ackerman and his children. In the meantime he had issued an execution on a judgment against Ackerman for the same indebtedness ; sold his personal property, including crops on the farm, for $880, and become the purchaser of it. Neither the defendant in the execution nor his children made any objection to the sale. This property however was surrendered to the children by Zimmerman on receiving their note as above stated. The taxes on the land in 1892 and 1898 were assessed to and paid by Simon Ackerman, and when it was sold in 1894 on the Derr judgment he filed an exception to the sale of it on the ground that the life estate had been set apart to him [596] under the exemption act of April 9,1849. There is not a scintilla of evidence in the case showing a change of possession or control of the property in pursuance of the alleged parol sale previous to October, 1892, nor subsequent to that time, unless the evidence that Irwin Ackerman bought some lumber and shingles in 1893 or 1894, which were used in the construction or repair of a washhouse, can be considered as such. It is not claimed that the children were to receive anything as a consideration for their assumption of their father’s indebtedness except a transfer of his life estate in the land, and yet they received property which sold at sheriff’s sale for $880, as part, if not the entire, consideration of it. Is the evidence referred to sufficient to take the parol contract out of the operation of the statute of frauds? We think it is not. “ The provisions of the statute are beneficial, and should not be further encroached upon: ” Gangwer v. Fry, 17 Pa. 491. “ Though the giving of a negotiable security be equivalent to actual payment in order to found an action for money paid or received, it is not so to found an equity: ” Parker v. Wells, 6 Wharton, 153. “ It is the notoriety of a change of possession in execution of the parol contract that, more than anything else, takes a case out of the statute of frauds: ” Ackerman v. Fisher et al., 57 Pa. 457. “ In order to take a parol contract for the sale of land out of the operation of the statute of frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. Also it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust: ” Hart v. Carroll, 85 Pa. 508. “ In parol contracts between father and child, clearer and stronger evidence is required of the father’s intention to part with his property than in cases of strangers in blood. The evidence of the contract must be direct, positive, express and unambiguous. The payment of the price must be proved positively. Every presump [597] tion is against the claim under such sale. There must be proof that the vendee took possession in pursuance of the contract. If before, his possession was worthless as evidence of an executed sale: ” Ackerman v. Fisher, supra. We have referred to the parol sale, as a sale by Simon Ackerman of his life estate in the land to his children, meaning thereby his sons John and Irwin and his daughter Ella. Neither his son George, nor either of his sons, Alvin or David, had anything to do with the alleged sale, or claimed anything under it. The note to Zimmerman was signed by Ella, John and Irwin, but John was not called as a witness to establish the contract. The quotations from the eases above cited sufficiently show what is essential to create an equity in the vendees which will take a case founded upon a parol sale out of the operation of the statute of frauds. As we have already seen, the evidence in this case is not sufficient to establish such an equity. It does not show a change in pursuance of the contract, in the possession or management of the farm, or performance or part performance of it by the vendees which cannot be compensated in damages, and it is by no means clear that there was any consideration for the note given by the defendants to Zimmerman, except the surrender by him to them of the property he bought at sheriff’s sale on an execution issued upon Ms judgment against their father. Upon the evidence in the case the court should have instructed the jury to find for the plaintiff. Judgment reversed and venire facias de novo awarded.