Heartzog v. Borgel

Opinion by Porter, J., Both of the parties to this ejectment claim a life estate in the property through Henry Heartzog, deceased, — the plaintiff under the latter’s will and the defendant under an alleged parol contract. The learned court below excluded several offers of proof submitted on behalf of the defendant, and finally directed a verdict for the plaintiff. The defendant has not been injured by the rejection of the offers of proof, for had the testimony been admitted, it would not in our opinion have sustained a [259] verdict for the defendant. We need therefore not pass upon its competency. The defendant’s title was based on an alleged parol gift or lease of the land, for life. Under the statute of frauds, a parol gift, if proven, has only the force of a tenancy at will, unless in addition to the parol gift, there is shown a continued possession, and the making of valuable improvements, such as cannot be adequately compensated for in damages. This proposition is sustained by many authorities. The defendant here offered to show neither the prolonged -possession, nor the making of improvements contemplated by the rule of law. If the agreement sought to be set up by the defendant be regarded in the light of a parol lease for life, her position is not strengthened. A parol lease for more than three years is, under the statute of frauds, but a tenancy at will, and even a ratification of it must be signified by writing: Dumn v. Rothermel, 112 Pa. 272. It was held in Whiting v. Pittsburg Opera House Co., 88 Pa. 100, that the facts that the tenant was in possession and that he made certain improvements in consideration of said lease do not create a sufficient equity to take the case out of the operation of the statute. The case of Smith v. Tuit, 127 Pa. 341, cited by the appellants, is not in point, inasmuch as that case was “ not affected by the statute of frauds, because the terms of the agreement are put in writing.” The same distinction applies to Tuit v. Smith, 137 Pa. 35. We are of opinion that no error'was committed by the court below in entering the judgment for the plaintiff, and the judgment is therefore affirmed.