Birkbeck v. Kelly

[345] Opinion by Mr. J ustice Gordon : On the 18th of November, 1876, the defendant, Edward Kelly, was in the possession of the land in controversy, and at that date the property was sold by the sheriff of Luzerne county, on process regularly issued from a judgment of the Freehold Building & Loan Association, against the said Kelly, to E. V. Jackson, the plaintiff’s vendor, and a deed executed to him which was acknowledged in due form of law, on the 29th of November, 1876. By this sale and deed whatever of right or title the defendant had was conveyed to Jackson, the sheriff’s vendee, and as against Kelly, the judgment, process and deed, as aforesaid, were conclusive and the court should have required nothing else from the plaintiff to establish a prima facie case. Drake v. Brown, 68 Pa. 223. Against this prima facie title the defendant set up an oral sale from Birkbeck to himself. This alleged sale is supported only by his oath, and that is positively contradicted by Birkbeck. This of itself should have determined the controversy against him. Sower v. Weaver, 78 Pa. 443. But aside from this, the proof did not establish a single element necessary to relieve the sale from the ban of the statute of frauds and perjuries. There was no evidence of the payment of purchase money, or of the valuable improvements; neither was possession taken in pursuance of the alleged sale, for according to his own oath he was in possession when he bought. This fact standing alone, although every other requisite to take the case out of the statute had been proved, was sufficient to cut up the defendant’s professed purchase by the roots, and to leave him without the shadow of a defense. Myers v. Byerly, 45 Pa. 368, 84 Am. Dec. 497; Christy v. Barnhart, 14 Pa. 260, 53 Am. Dec. 538. As what we have said does, in effect, sustain all the assignments of error, we need not discuss them separately. The judgment is reversed and a new venire ordered.