Lewis v. Baker , 162 Pa. 510 ( 1894 )

Opinion by

Me. Justice Williams,

This action was brought in 1888 to recover the equal undivided one half of the tract of land known as the Clingan farm. The plaintiff holds the legal title to the one half as tenant in common with his father under a deed made to them in 1856. The defendants set up a variety of circumstances, including a family settlement made in the presence of John L. Lewis, the father, during his last sickness in 1869, as an equitable defence to the action. The case was first tried in 1891 and a verdict was rendered in favor of the plaintiff under the directions of the learned trial judge. The reason for this instruction was the conclusion of the learned judge that the facts relied on as constituting a defence had been considered and finally disposed of adversely to the defendants in a proceeding in equity to compel specific execution. The judgment entered on the verdict was brought into this court by appeal and was reversed, and a venire facias de novo awarded: Lewis v. Baker, 151 Pa. 529. A new trial has taken place, and a verdict has again been rendered in favor of the plaintiff under a binding instruction from the learned trial judge that the facts set up by the defendants were not sufficient “ as a matter of law to prevent the plaintiff from recovering.”

The single question raised by this appeal is whether the testimony should have been allowed to go to the juiy. Looking over it as it appears in the paper-books we learn that this farm was bought by John L. Lewis, the father, in 1856, and paid for by him. The deed was made at his direction to himself and his son Thomas as tenants in common, and probably with a view to the final division of his property among his children. In 1861 he bought an adjoining farm known as the Kelly farm, and caused the deed to be made to Thomas, who immediately took possession of it and has remained in possession ever since. Ten years later he bought a small lot known as the Harmon lot, which adjoined both the others, and had the deed made to himself. The division line between the Kelly and Clingan farms was then readjusted in such manner as to incorporate the Harmon lot into the two farms, and equalize to some extent their relative values. The fences were then moved from their former location and rebuilt on the new division line. The son continued in possession of the Kelly farm in conformity with its modified boundaries, and the father retained possession of the Clingan. This state of things continued until 1869, when John L. Lewis, then about ninety years old, was taken sick, and turned his attention to the division of his estate among his children. He sent for his legal adviser and laid before him the plan he had determined on for dividing his property, in order that he might prepare a will that should give effect to his wishes. Part of the plan was that Thomas should have the Kelly farm, which he had already had conveyed to him, and should release his title to the Clingan farm to his sisters. Thomas and some other members of the family appear to have been present at this interview between the father and his counsel, and to have expressed themselves satisfied with the proposed division, and willing to carry it into execution. Before the return of the counsel on .the following day to complete the will Thomas had satisfied his father that a will was not necessary because he would carry out the plan proposed without the trouble of making and providing a will for that purpose. Resting on this assurance the father dismissed his counsel and died without making a formal will. After his death Thomas remained in possession of the Kelly farm as his own. The rest of the family, or some of them, remained on the Clingan farm, and have built and made other improvements upon it which have added, according to the testimony, about fifty per cent to its value. Thomas did not interfere with them in any manner, but down to 1888 expressed himself as ready and willing to release to them his title to their farm; and a deed was prepared for that purpose which he said he was ready to execute, but that his wife refused to join him in so doing. • In that year this action was brought. This was thirty-two years after the purchase of the Clingan farm and the taking of possession by the father. It was twenty-seven years after the purchase of the Kelly farm and the delivery of the possession thereof to Thomas. It was twenty-five years after the absorption of the Harmon lot and the readjustment of the division line between the farms. It was nineteen years after the death of the father and the well established arrangement between him and his son for the settlement of his estate and the release by the latter of his title to the undivided half of the farm that was to go in the division to his sisters. These powerfully persuasive circumstances, with many other collateral and corroborative ones, are grouped in the third assignment, and it is alleged that it was error to withdraw them from the jury by a binding instruction that they were “ not sufficient as matter of law to prevent the plaintiff from recovering.” We think the point is well taken. If these circumstances were established to the satisfaction of the jury, by credible testimony, they made a complete answer to the plaintiff’s legal title both “ as a matter of law,” and as a matter of morals. The plaintiff lay by until his title to the Centre county farm had ripened under the statute of limitations; until the defendants, under the belief, resting on the father’s wishes and the brother’s promise both to his father and to them, that he would release to them, had expended considerable sums of money in improvements on the farm set apart to them; and then, in the face of these circumstances and his own clearly proved agreement, he attempts to assert a naked legal title against his sisters. Here are all the elements of an estoppel. Here is a gain to himself by his delay, in the ripening of the title to the Centre county farm; a loss to his sisters in valuable improvements made by them, which he now proposes to appropriate to himself; the repudiation of a solemn agreement, repeatedly acknowledged, upon their faith in which the improvements have been made by his sisters ; the lapse of many years, with a full knowledge of all the circumstances, until values and circumstances have changed, until witnesses have died or grown old, and proof of the facts has been rendered difficult. To permit the plaintiff to unsay all that he has said for the last nineteen years, upon which his father and his sisters have rested their action, would be a clear fraud upon the owners of the Clingan farm which equity will not permit: Hill v. Epley, 31 Pa. 334; Pancake v. Cauffman, 114 Pa. 113. The plaintiff’s course of conduct for nineteen years was not merely an encouragement, it was practically an assurance,, that they might make improvements with safety because the land was theirs and he would do what was necessary to complete their title in law. He should now be held to be a trustee of the legal title for their use, so far as to prevent a recovery by him against those whom he has misled: Hamilton v. Hamilton, 4 Pa. 193-6.

The testimony of Levi Bechor did not justify the withdrawal of this case from the jury. His testimony was not conclusive upon the defendants, certainly not as to the questions upon which there was other testimony. His credibility was for the jury, and a party cannot ordinarily be bound by the unlookedfor statements of a witness who shows himself to be hostile to the party calling him.

The judgment is reversed upon the first, second, and third assignments of error.