Holt v. McWilliams

Opinion by William W. Porter, J., This is an appeal from the decree of the orphans’ court directing a conveyance, to the petitioner, of a piece of land. The decree is based upon a parol contract of sale made by the decedent. The first error alleged is that the findings of fact by the court below were upon evidence insufficient to prove the alleged parol sale of the real estate and inadequate to take the sale out of the operation of the statute of frauds. The evidence adduced has been examined by this court. The testimony for the petitioner shows that he bought the land from the decedent and paid for it, and that a deed for a portion of it was made, at his request, to his daughter for a nominal consideration. It further shows that the decedent, while standing upon the land (which was enclosed by a fence and included an area of about three quarters of an acre), in the presence of the petitioner, stated to one Hill, a witness in the cause, that he had sold the lot in question to the petitioner. Several other witnesses were called proving declarations by the decedent that he had sold the lot to the petitioner, and showing further that the petitioner had for a period of years been in possession and had cultivated the land, and had made improvements thereon. It was further proven that the decedent directed [140] the land to be assessed for taxation in the name of the petitioner, who paid the taxes; that the petitioner and an adjoining neighbor together constructed a line fence along the property. The proof was thus in character and strength sufficient to sustain the findings of fact by the court and the decree based thereon: See McGibbeny v. Burmaster, 53 Pa. 332; Haslet v. Haslet, 6 Watts, 464; Jamison v. Dimock, 95 Pa. 52 ; Simmons’s Estate, 140 Pa. 567. The evidence of the parol agreement warranted a decree enforcing specific performance of it under the language of the Act of February 24, 1834, P. L. 70, which is that the performance shall be required “ in all cases where such parol contract shall have been so far executed that it would be against equity to rescind the same.” Furthermore, the Act of April 28, 1899, P. L. 157, by its terms (if applicable to the pending cause) covers the facts exhibited by the proofs. The latter act affects parol contracts which may have been “ so far executed by possession, by improvements, or by partial payments of purchase money, that it would be against equity to rescind the same.” The appellant urges another reason for reversal. It appears that the plaintiff brought an action at law which the appellant asserts was to recover the purchase money, which is alleged to have been paid to the decedent. This is asserted to have been an election by the present petitioner to rescind the contract of sale. It is now said that having so elected, he cannot assert his right to specific performance, because the two proceedings are inconsistent. This phase of the case presents no difficulty. The action at law was discontinued and the costs paid. It was in fact a suit based upon the very contract which is now the basis of the decree for specific performance. The suit was founded on an obligation of the defendant to perform his agreement to convey. The two proceedings are not inconsistent. It is true, pending both, the plaintiff might have been driven to elect between them. He, however, discontinued the first, and relies now solely on his right to specific- performance. The case of Findlay v. Keim, 62 Pa. 112, is a precedent which strikes from beneath the appellant support for the proposition he seeks to sustain, and clearly eliminates from application the case of Potts’s Appeal, 5 Pa. 500, upon which he relies. The judgment is affirmed.