Phillips v. Swank , 120 Pa. 76 ( 1888 )

Opinion,

Mr. Justice Clank:

This .'ejectment was brought to recover the possession of two hundred -and fifty acres of land, more or less, situate on the North Mountain, in Sullivan county. Both parties claim title under David Phillips,- who sometime prior to the • year 1847 became the owner in fee. The plaintiff gave in evidence the record of an agreement for the sale of the land in dispute, by David Phillips to Henry Swank, dated 17th October, 1863, and proved the payment of $1,500 in full of the purchase-money. It was further shown, that Swank went into and remained in the possession under his purchase, until 7th April, 1881, when the defendants wore found to be in the occupancy of a vacant house on the tract, claiming title to, and possession of the whole tract.

To maintain the issue on their part, the defendants, who were sons of Jonathan Phillips, offered in evidence the record of a writing, in the words and form following, to wit :—

Augest the 20,1850: — i do herby agree tht Jonathan Phillips shall have the land wich he is posetion of now for the labor he don for me over age and this shall be his wrecept for all my writes and claims against the land.

[Signed]

David Phillips.

This offer to be followed by proof that Henry Swank purchased with notice of Jonathan Phillips’ title, and that the land of which Jonathan Phillips was in possession, at the date of this writing, is the same land of which the defendants in this suit are now possessed.

This offer was refused upon the ground that the writing was, in legal effect, an executed conveyance of the land, and, as it contained no words of inheritance, it passed only a life estate to Jonathan Phillips, and was ineffective to vest any estate or right in the defendants at his decease.

If the writing referred to is to be construed as a complete conveyance of the land, the court was right in holding that an estate for life only would pass under it: Gray v. Packer, 4 W. & S. 18. In a will, the force of the word “heirs” may be controlled by the context; but in a deed, it is a term of art, and indispensable to carry a fee: Hileman v. Bouslaugh, 13 Pa. 344. So, in an executory contract, the absence of words of inheritance will not prevent the passing of a fee simple in equity, where it appears to have been the intention of the contract to convey a fee: McFarson’s Appeal, 11 Pa. 511. Equity will supply words of inheritance, and imply a fee where the consideration paid or other circumstances evince that no less than a fee was intended: Defraunce v. Brooks, 8 W. & S. 68; Ogden v. Brown, 33 Pa. 250. The primary question in this case therefore, is, whether the writing embraced in the defendants’ offer, is to be construed as a conveyance or an agreement to convey.

It is a well recognized rule of construction, that whether an informal instrument, transferring an interest in real estate, shall be construed a conveyance, or an agreement only, depends, not upon any particular words and phrases it may contain, but on the intention of the parties, derived from the instrument itself; and, when that is doubtful, from the circumstances attending its execution: Kenrick v. Smick, 7 W. & S. 41; Bortz v. Bortz, 48 Pa. 382. The intention is so imperative, that even the strongest words of conveyance in the present tense will not pass the legal estate, if other parts of the instrument show that this was not the intention of the parties: Williams v. Bentley, 27 Pa. 301. On the one hand, technical words of present conveyance are not necessary to constitute an executed contract; if the intention is plain, it is sufficient; and, on the other hand, even though technical words of present grant are used, yet, if by reason of something further remaining to .be done, or from the tenor of the whole instrument, the design of the parties is manifested that the contract is executory merely, it will be so construed.

In determining this intention, ex visceribus, the first rule, however, is to inquire whether the language imports a present conveyance, or whether, collecting all its parts, it contemplates a further assurance to pass the title: Bortz v. Bortz, supra. Applying this rule in the construction of the writing offered in this case, it is plain that there are no technical or other words of present conveyance. By its terms David Phillips “ agrees ” that Jonathan “shall have ” the land which is designated as “the land he is in possession of now,” without any formal or further description whatever; he is to have the land for the labor he did for his father, after the years of his majority, and, it is provided, that “this shall be his receipt,” etc. Although David Phillips was the owner in fee, and the “receipt” was for all his “rights and claims against the land,” there are no words of inheritance or words indicating the succession to the title at Jonathan’s death. If the parties intended the writing for an executed contract, then but a life estate passed: that such an effect was the design of the parties, in view of the language just quoted, it is difficult to believe, for it is obvious that David Phillips intended to convey his entire estate, and his title was in fee. The instrument is not styled a deed or a conveyance, it is in the nature of an agreement; it is of the most informal character; it does not disclose the slightest efforts to adopt the orderly parts of a conveyance. It is not under seal; indeed it bears upon its face the most distinct and unequivocal marks of an executory contract; it is nothing more or less than a “receipt” for the purchase-money of the land, and an agreement to convey in consideration thereof.

Nor do we regard the case as coming within the statute of frauds. It is true, a written contract, in order to comply with the statute, must be in some sense self-sustaining. “ It would be mere folly,” as was said in Morris v. Stephens, 46 Pa. 200, “ to make a conveyance to my next door neighbor, or to the person now sitting at the table with me, by this description, instead of by name; the law could hardly be expected to enforce such a conveyance in the face of the statute which requires conveyances to be in writing and to be self-sustaining, with the exception only of such necessary uncertainty as is involved in their application to persons named and things described.” There is, as intimated in the language of the case referred to, a necessary uncertainty in writings, involved in their application, not only to persons but to things described therein. If there are two or more persons of the same name, it may be necessary by parol proof to fix the identity of the person intended, or the thing concerning which the parties propose to contract may be described in such general terms as to require parol proof to identify the particular subject of the contract. It is quite impossible in most cases so to describe land as to avoid the necessity of parol proof for its identification ; for, whether it be described by metes and bounds, by monuments erected upon the ground, or by adjoin ers, its identification necessarily becomes the subject of parol proof. In this instance, the lands agreed to be conveyed were described as the land of which Jonathan was at the time in the actual occupancy and possession; this was no more open to the objection stated than if it had been described by its adjoiners, or by marks upon the ground.

Upon an examination of the whole case we are of opinion, that the defendants’ offers should have been received, and that the court erred in excluding them.

The judgment is therefore reversed, and a venire facias de novo awarded.