Baring v. Peirce

The opinion of the Court was delivered by Sergeant, J. The defendants having no deed or writing for the land in dispute, seek to take it out of the purview of the Act against frauds and perjuries, by alleging a parol contract with the plaintiffs’ agent, M’Dougal, and the part performance of it by the delivery and taking possession of the land in pursuance of such contract. To this, the plaintiffs object the want of authority in M’Dougal to make such a parol contract, and this raises the first question in the case, whether any such authority existed. No other authority to M’Dougal is produced, than what is contained [551] in the letter of Dr Rose to him dated the 26th February 1831, and this, we think, does not contain such an authprity. The power given to M’Dougal by Dr Rose, when he thus employed him as surveyor and agent, is to survey for applicants, and he is expressly directed “ at the time of the survey, to fill up and sign with the purchaser separate articles of agreement for the lot, printed blanks of which will be furnished you. Of these, send one to the agent of the estate, with the lot marked on the back of it, give one to the purchaser, and retain the other.” These directions are precise and positive—marking out a particular plan which was to be pursued in making these sales, intended to prevent doubt, mistake or litigation, and to ascertain the rights and obligations of the parties by instruments of writing and printing, of which each person interested should be in possession of a counterpart, giving a clear equitable title to the purchaser. But it does not authorize a parol contract or promise at some future day to give to any person a preference of a lot, or a license by which he may enter on the land . and cut timber at his pleasure, without conforming to the mode presented by Dr Rose. All the prudential care'taken to have the estates disposed of in a methodical and regular manner, by survey and articles of agreement in triplicate, might be entirely defeated, if the sub-agent could thus bind the principal by conversation or parol promise, or other loose and irregular modes of every kind that can be thought of, resting on the dubious and frail evidence of parol, and involving, almost necessarily, dispute and controversy, in opposition to the plainly expressed regulations established by the owners, and known to the applicants. For this being a special authority to M’Dougal, must be strictly complied with: he who dealt with him as sub-agent, was bound to look to his powers as such, in relation to the property of his principal. Nor can it be imagined that Dr Rose intended to vest a power, which might lead to the waste and injury of the property, by despoiling it of its timber, under loose conversations, in which neither the price, nor the extent, nor terms were fixed in the authentic mode he prescribed, nothing definite ascertained or determined, and where the party would be afterwards bound, or not bound, as might suit his convenience or caprice. The whole tenor of the letter contemplates something fixed and ascertained on all these subjects : and one who chose to rely on anything short of what is prescribed, must be considered in a court of law or equity, as doing so at his own risk, and as resting on the good will and favour of the owner, but not as acquiring a title binding on the owner, or one which a court of law or equity can recognise. The other parts of the letter referred to, do not seem in the least to vary this view of its terms, or to be inconsistent with what has been quoted. The direction to book the name of the applicant, (and no such booking has even been produced), was given, as it is expressed in the letter, in order to prevent a charge of partiality, by showing at any [552] time afterwards, the time when, and the lot for which such person applied: but does not itself give any legal or equitable claim, where it is not followed up by survey and articles. And as to the direction when improvements had been already commenced, that is only for the ascertainment of the time when interest was to commence, in case a survey and articles were afterwards had. But no right could be acquired by an intruder, who entered and cut down timber, or even improved, as against the owner, where it was never accompanied and followed by survey and articles. There then being no authorized contract, even possession under it would be unavailing to constitute part performance. But there was not a possession here, in a legal point of view, such as would devest the plaintiff’s original constructive possession, and defeat his action of trespass quare clausum fregit. There is no evidence that the defendants had resided or built on the land, or cultivated or fenced it in, or had any pedis possessio, or paid the taxes: they had no other occupancy than while they were there cutting off timber: and this would not constitute a possession, though they owned the adjacefit tract, and claimed this ’swamp or a part of it, and used this woodland. There must be something else to constitute possession, as was held by this court in Wright v. Guier, (9 Watts 172), where the doctrine is fully examined by Chief Justice Gibson. There, an iron-master bought a tract of woodland at sheriff’s sale, with other adjacent tracts, and entered from time to time to cut and coal the wood, using it as he did his other woods, claiming it under his sheriff’s deed; yet this was held not to be such a possession as would give title under the statute of limitations. Now what acts, if proved, make out a contract sufficient to take the case out of the statute of frauds, and pass a title by parol, and what acts constitute a possession such as defeats the action of trespass, are questions of law for the court, in the application of the principles of equity in each case, and it is error to throw these questions on the jury for their determination. We are, therefore, of opinion, the court below erred in admitting the evidence contained in the bill of exceptions, and also in their charge to the jury on the matters above stated. ' Judgment reversed, and a venire de novo awarded.