Hess v. Calender , 120 Pa. 138 ( 1888 )

Opinion,

Mr. Justice Williams :

In the case of Reno v. Moss an opinion is this day filed in which we have considered the powers and duties of a judge in the trial of an equitable ejectment: [reported ante, 49.] In the case at bar we are to consider the province of the jury in the same form of action.

The defendant below, now plaintiff in error, defended under a parol contract. He alleged that his father, under whose will the plaintiff claimed, had given the land in controversy to him several years before his death; that he had taken possession under the gift, continued in possession uninterruptedly and made valuable improvements. The • learned judge who presided at the trial regarded himself as a chancellor from whom a decree for specific performance was asked, and not being persuaded that the proof was sufficiently clear, positive, and convincing to justify a decree, refused to submit it to the jury. This the plaintiff in error insists was wrong, and contends that in Pennsylvania it is the duty of a judge in an equitable ejectment to send a case to the jury “whenever material facts are in conflict or the credibility of witnesses is involved.” Moore v. Small, 19 Pa. 468, is relied on as establishing this doctrine.

In that case the plaintiff claimed title under the will of John Small. The defendants set up a parol contract which they alleged had been made between John Small, who was their grandfather, and Matthew Small, their father. There was a distinct denial by the plaintiff that the alleged contract had been made or possession taken under it. Every material fact asserted by the defendants in support of the parol contract was controverted, and if the rule which it is insisted this case lays down could be applicable anywhere this was a case for its application. The learned judge of the court below was of that opinion and submitted the whole case to the jury. He said: “ Are the jury clearly satisfied there was a gift ? That the subject of the gift was definitely or to a reasonable certainty described ? That exclusive possession was taken after and in pursuance of the gift ? That improvements of value were made on the land after the gift or contract ? and that the right thus acquired was not abandoned ? If so, the verdict ought to be for the defendants.”

The jury were satisfied upon all the points suggested by the learned judge and rendered a verdict in favor of the defendants. The case came into this court and was promptly reversed, because it had been given to the jury upon evidence that was insufficient in the opinion of this court to support a verdict in favor of the defendants. “ The whole case,” said Judge Woodward, who delivered the opinion of the court, “was turned over to the jury and they were substituted for the chancellor to pass on the equities of the defendants, and of course they were dealt with loosely.” In discussing the relation between the judge and the jury in this class of cases, he stated the rule thus : “ In everything but the form of the proceeding we are bound to deal with a parol contract for land as a chancellor would deal with it. When the proceeding is by bill, a jury has nothing to do with the facts or the equity; the chancellor determines both. To satisfy his conscience he may at his discretion send issues of fact to a jury, but he is not bound to do so. Having done so he may grant a new trial, or determine the facts for himself contrary to the verdict, but in no case have the jury anything to do with the equity.” Turning then from a proceeding by bill to an action of ejectment involving an equitable title, he refers to the tendency to overlook the rule in equity and submit the equities to a jury, and to the manner in which the statute of frauds is thus blotted out by a verdict, and asks: “ But how is this to be prevented?” and proceeds at once to answer the question : “In no other way than by the action of the judge as a chancellor which he truly is.”

The duty of a chancellor is not in doubt. He must scrutinize and weigh the evidence for himself. If the facts set up are sufficient in character, and are clearly and satisfactorily proved so that he is persuaded that in equity and good conscience a decree should be made, he will enforce the contract. But specific execution is not of right but of grace. If one has a legal right on which he can rest his title to relief, a court of law is his proper forum. It is because he has no right at law to the relief he seeks that he comes into a court of equity. He must come with clean hands; his application must be made with reasonable promptness ; it must be conscionable; it must rest upon facts that are made to appear by proofs that are clear, satisfactory in character, and convincing. If such a case is not presented, it is an unwarrantable abandonment of duty for a judge to turn the case over to a jury, and do by means of their verdict what as a chancellor he would refuse to do.

What then is the province of the jury in such a case, and what is the meaning of the expression quoted by the plaintiff in error from the opinion in Moore v. Small ? We reply that it is simply that of an advisory council in aid of the conscience of the chancellor: Moore v. Small, supra; Brightly Eq., §§ 758-59; Piersol v. Neill, 63 Pa. 420. If he is satisfied upon all the evidence that the case is a proper one for specific execution, he should say so to the jury and direct their verdict. If he is not satisfied; if the facts are not sufficient or the evidence on which they rest is not clear, satisfactory, and convincing, so that his conscience is not moved, he should in like manner say so to the jury and direct their verdict. If the facts alleged are sufficient, if satisfactorily established, but the evidence in relation to them is conflicting or the credibility of a witness is involved, and the conflicting testimony is of such a character that he can conscionably sustain a verdict either way according as the jury may find, the case should go to a jury with careful instructions, so that it may turn upon their finding of the disputed fact. On the other hand, if the evidence in support of the witness or fact necessary to sustain the parol contract is suspicious or unreliable in character, so that the chancellor could not conscionably sustain a verdict resting upon it, he should not submit it to the jury. Their finding is in aid of his conscience, and when upon all the evidence he could not in good conscience accept their verdict as a fair and just disposition of the question, whatever the verdict might be, he may dispose of the case without their aid.

, It may be said that this leaves a very narrow field for the jury, and so it does ; but it is as broad as the nature of the controversy admits of without stripping the chancellor of his authority and delivering his conscience into the keeping of a jury, This we are not prepared to do. A parol contract for the sale of lands is void at law. The statute of frauds and perjuries so declares in the plainest and most explicit manner. Its provisions rest on settled principles of public policy. Whether wisely or not, courts of equity have undertaken to grant relief in certain cases against the plain provisions of the statute. When an appeal is made to a chancellor, whether sitting on the equity or the law side of the court, to enforce a contract void at law, its equity must be apparent, involved in no doubt, and wanting in no requisite necessary to move the conscience. This is to be judged of by the chancellor, the jury in proper cases acting as an advisory council.

The judgment in this case is affirmed.