Fritz v. Menges , 179 Pa. 122 ( 1897 )

Opinion by

Mr. Chief Justice Sterrett,

In the language of plaintiffs’ only point, the learned trial judge instructed the jury that, “ under all the evidence in the case, the verdict must be for the plaintiffs for the land in dispute ; ” and accordingly a verdict was taken, subject to the opinion of the court on the question of law presented by said point. The defendant alone excepted to this ruling; but, inasmuch as judgment non obstante veredicto was subsequently entered in his favor on the question reserved, he of course abandoned his exception; and no question, as to the form of the reservation, has been raised here by either party.

Waiving any question as to the regularity of the reservation, and considering the case, as the parties have done, on its merits, we are by no means convinced that the learned judge’s construction of the instrument, upon which defendant’s claim of title in himself depends, is not substantially correct. On the contrary, for reasons given in the opinion of the learned judge, we think the instrument in question was correctly construed.

There is no valid ground on which it can be successfully contended that the instrument in question is neither an executed nor an executory contract, but simply a lease. If that portion of it, designated as “ Part First ” stood alone, and contained no reference to “ Part Second ” and omitted the undertaking of the defendant, there might be some ground for construing it to be a lease. But in construing the paper both parts must be taken together; and when thus considered as a whole, it is very evident that it is not simply a lease.

With still less show of reason can it be considered nudum pactum. In the services to be rendered by the defendant, and which were actually performed by him, the agreement clearly discloses a valuable consideration.

Some of the authorities cited by plaintiffs in support of their further position that at most the agreement is merely executory, are not in point. While the instruments to which they refer do contain words of present assurance of the land, they also provide for a future conveyance of the same. In the case at bar, there is a present grant of the land without any provision whatever for a future conveyance. The operative words are: “ (then) I (the said John Geiger and wife do) hereby grant to him (the said Thomas A. Menges) one day after my and my wife’s death the farm or tract of land described in Part First of this agreement, his heirs and assigns forever, and free of all incumbrances.” We thus have a present grant — containing words of inheritance —on conditions to. be performed by the grantee, followed by possession taken by him within less than three months after the execution, of tlie instrument, and performance by him of tbe conditions and stipulations; and in addition thereto, valuable improvements made by him on the land, and continuous possession thereof during the joint lives of the grantor and his wife and the life of the survivor.

In Gray v. Blanchard, 1 Leading Cases, Am. Law of Real Prop. 127, it is said: “ A condition may be made of anything that is not illegal or unreasonable, on the principle that the owner of the land, who is not obliged to transfer it at all, may attach to its transfer such conditions and restrictions as he pleases, and in view of which the grantee takes the land so long as they are not in contravention of any policy of law. ... A very common condition in rural districts is that the grantee shall support the grantor during life: ” Id. 128, and cases there cited.

In the case before us, the conditions are: “ Shall and will from time to time strictly comply with the conditions of the agreements as above stipulated, and in addition, at the request of said John Geiger and Elizabeth, his wife, do such work as shall be necessary to be done for them, such as furnishing fuel and providing for provisions and nurses for them in case of sickness, ” etc.

This language fully meets the requirements stated in Gray v. Blanchard, supra; and, in view of the undisputed facts that the defendant fully performed all the conditions and stipulations contained in the agreement, etc., and that no complaint was ever made by either the grantor or his wife, the title in fee, on the death of Geiger and his wife became, absolute in the defendant. As was held, in Evenson v. Webster, 44 Am. Rep. 802, “A conveyance upon condition subsequent, passes the title to the grantee, subject to be divested by failure to perform the conditions. The rule that the title passes in such conveyances is generally recognized: Fowle v. Remsen, 70 N. Y. 303; 4 Kent’s Com., 125 ; 2 Blackstone Com., 154.”

Assuming for argument’s sake merely that the contract is only executory, the question would then arise whether it is such a contract as a chancellor would enforce. We think it is, because (1) there is nothing unreasonable in its terms. It imposes on the defendant certain conditions, the performance of which on his part becomes absolutely necessary. (2) It contains words of inheritance which, in equity are not even required in an executory contract. “ An executory contract will pass a fee simple in equity without words of inheritance: ” Ogden v. Brown, 33 Pa. 247; Phillips v. Swank, 120 Pa. 76. (3) There was full compliance by defendant with its terms and conditions, and no complaint to the contrary was ever made by either the grantor or his wife. (4) The contract is perfectly fair. While it is informal, its terms are sufficiently clear and capable of ascertainment. There is no allegation of fraud or imposition in its procurement.

Other authorities, among which are Johnson v. McCue, 34 Pa. 180, Dreisbach v. Serfass, 126 Pa. 32, are cited in support of the principle; but further elaboration of the subject is unnecessary. As already stated, the operative words of the contract under consideration — -unqualified by anything therein contained ■ — justified the conclusion that it was an executed contract and not an executory agreement to convey.

On the trial it was admitted that title to the land in controversy was in John Geiger prior to December 15, 1888, the date of the instrument referred to; that on March 17, 1890, John Geiger died intestate, leaving to survive him a widow, Elizabeth Geiger, and collateral heirs, but no lineal descendants, and that in January, 1893, the widow died. In same connection the plaintiffs proved that they are the heirs of John Geiger, and put in evidence the writ, etc.

To meet the prima facie case thus presented by the plaintiffs, the defendant proved that he went into possession of the land under and in pursuance of said contract of December 15,1888; that he complied with all the terms and conditions thereof, to be done, kept and performed by him, and that he has remained in possession ever since. After having proved the execution of said contract and the circumstances connected therewith, the instrument was offered and received in evidence. Its admission constitutes the first assignment of error.

There was no conflict of testimony as to the execution of the instrument, and there appears to have been no error in overruling plaintiffs’ objection and admitting it in evidence.

Nor was there any error in receiving the testimony complained of in the second specification. It was both relevant and material in that it proved performance by the defendant of all the terms and. conditions of the contract under which he acquired and retained possession of the land.

The testimony referred to in the third specification was rightly excluded, for the reason that it was incompetent and wholly irrelevant to the issue.

There was no error in the admission or rejection of testimony: nor was there any conflict of evidence-as to any of the material facts in the case. We find nothing in the record that requires a reversal of the judgment for the defendant non obstante veredicto, and it is therefore affirmed.