Blakeslee v. Blakeslee , 22 Pa. 237 ( 1853 )

The opinion of the Court was delivered by

Black, C. J.

These two parties are brothers. Their father was the owner of sixty-eight acres of land in a body. For twenty-two acres including the buildings, he had a perfect title, and for the other forty-six a settlement right. In 1843, he proposed to his son Perry, the plaintiff, that if he would marry and remain at home, and work the land, giving him and his wife during their joint lives one-half the produce and the use of the mansion, he would give him a deed for it in fee, to take effect after the death of the surviving parent. The son agreed, and a scrivener was sent for, who drew a deed in the usual form, without reservation, and also a re-conveyance from the son to the father for a life estate. The father objected to inserting the forty-six acres, because he had no paper title, but promised that Perry should have a conveyance in another way at another time. This was consented to, with some reluctance, and both instruments were executed for the twenty-two acres. Perry married, and remained at. home, and kept the kind of possession agreed on until his father’s death. The father devised the land to the mother, and she conveyed it to another son, Abraham, the defendant below, who occupies it now.

This statement of facts may, in some respects, be slightly inaccurate, but it is as nearly correct as the bad condition of the paper-book on both sides will enable me to make it.

The plaintiff is seeking to recover the forty-six acres without having the slightest written evidence of his title, and therefore in direct opposition to the statute of frauds. Is there anything in the circumstances of the case to take it out of that statute ? Has he proved the payment of purchase-money and exclusive possession taken, in pursuance of the parol agreement? It is not necessary to say whether the evidence proves a contract or a gift. Neither are we called on to say whether the marriage of the plaintiff is such a consideration for the land as would be equal to a payment in money. The judgment cannot be sustained, for a reason that makes all others of no importance. There was no exclusive possession in the vendee. The twenty-two acres included in the written conveyance, and the forty-six now in dispute, were used and occupied as one farm. The vendee farmed the land and lived in the house, but his father lived in the same house, owned the farming implements, and received the half of the crops. The share which the son' got was not more, probably, than the value of his labor. It may be said that the father regularly received all the profits of the land, and had his home upon it. Can it then be said that the plaintiff’s possession was exclusive? The ancient departures from the statute of frauds have been much lamented in modern times. The rule, therefore, which requires the vendee in a parol contract to show everything which equity requires to entitle him to relief from its operation instead of being relaxed, is becoming tightened by degrees. It has now got to be a work of some difficulty to establish a contract in a way which will stand the test to which it is sure to be subjected. But if a sale not witnessed by a writing is hard to support, what ought to be the fate of a demand like the present, which is directly in the face of a deed ? It cannot be said there was no writing here. There was but one bargain between the parties, and that was attested and consummated by an interchange of their solemn deeds. "When the plaintiff claims land not embraced in the deed, he is encountered not only by the statute of frauds, but also by that other rule of law, equally unbending, which makes the deed conclusive evidence of the contract.

It is argued in this case, that the deed does not express the con-< tract, and that a chancellor would reform it or -decree on the evidence as if the forty-six acres were included. This is an error. Parol evidence can only be admitted to vary or change the terms of a written paper in cases of fraud or plain mistake of fact. All the cases cited by the defendant in error go to establish this principle, and they establish nothing more. In Christ v. Diffenbauch, 1 Ser. & R. 464, a party who had been tricked into signing a lease without a covenant in his favor, which had been agreed to, was permitted to prove the truth. Hamilton v. Asslin, 14 Ser. & R. 448, was a case of plain mistake by the scrivener, who inserted what neither party assented to. In Flagler v. Pleiss, 3 Rawle 345, a lot was sold and the purchaser took possession. The vendor falsely and fraudulently described it in the deed as containing less than it did, and made an effort to hold the balance to himself. The grantee recovered what she bought, but the Court said, without fraud and deception the deed would have been conclusive. Tyson v. Passmore, 2 Barr 122, decided that a mistake in law produced by the false representation of a party who afterwards seeks to have the advantage of it, may be relieved against. Clark v. Partridge, 2 Barr 14, was declared by the Court to be a case of palpable fraud. Zentmyer v. Mittower, 5 Barr 403, is very strong authority for the doctrine opposite to that on which this case was decided in the Common Pleas. It decided that parol evidence, unless it amounted to clear proof of a fraudulent representation by one who has an interest in the transaction, is not admissible to vary a deed.

Was there any fraud or falsehood practised on the defendant in error by his father ? Most assuredly the evidence submitted to us does not prove any such thing. Nor is there a fact asserted in the argument from which we could fairly infer that there was the slightest deception. Both parties acted with their eyes open equally wide. Undoubtedly the original contract was that both pieces of land should be conveyed. When the papers were preparing, the father proposed that one piece should be left out of the deed, and he carried his point by saying, what the son knew, as well as he did, to be true, that he had not yet perfected his title from the Commonwealth. Neither was there any mistake , made by the scrivener. He wrote just what he was directed. No deed or other writing was ever reformed upon such evidence. The promise of the father that the son should have a title afterwards, for the forty-' six acres, adds nothing to the force of the previous contract. It was a parol promise, and in itself gave no right to the land.

This then is a plain case. Simply stated, it stands thus: A father agrees, by parol, to give bis son sixty-eight acres of land. He afterwards makes and delivers a deed for twenty acres, a portion only of the sixty-eight. The deed being made without fraud and accepted without mistake, cannot be treated as a conveyance of land which it does not mention. The promise to convey the remaining forty-six acres, whether made at the date of the deed or before, still rests in parol and cannot be enforced, because the statute of frauds forbids it, and because there was no such exclusive possession under it as will enable a Court to decree performance.

We do not say, that there was an absolute merger of the contract in the deed. But, at least, it was no more than a part execution of the previous bargain. The deed for a portion of the land does not take the contract for the balance out of the statute. The vendee has no better title for the forty-six acres than he would have had for it if no conveyance had been made of the twenty-two acres. Since his deed does not cover the land in dispute, he can only fall back on the verbal agreement, and that, as I have already shown, will not support him.

Judgment reversed and ven. fa. de novo ordered.