Campbell's v. Patterson , 95 Pa. 447 ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court,

By deed acknowledged August 17th 1872, Campbell conveyed the land to Patterson and Reed, “ with the right of way over a private road or street, forty feet wide, from the said township road, along outside of the first described four lines of this piece of ground.” In October following he conveyed the adjoining lands to Hampton, Routh and others, reserving the right of way before granted over said private road. After these conveyances, he wrote in the deed to Patterson and Reed this addition to the description: “And being section C in a plan of subdivision of part of said larger tract to be hereafter recorded,” and gave them the plan. They allege said plan set out divers streets leading from the land conveyed to them through the adjoining lands, subsequently conveyed to Hampton, Routh and others, and said streets were an inducement to their purchase. This the answer positively denies. Upon the issue thus raised the master found for the plaintiff, and was of opinion that the prayer of the bill should be granted.

Reed, one of the grantees, was a minor and became of full age November 5th 1873. Nominally he is not a party, but he and Patterson each filed a deed at same time, for same purpose, to take effect “ upon a rescission of the contract under terms of plaintiff’s bill.” The notes given for purchase-money which became due in 1878, 1874 and 1875 were paid, but those due in 1876 were not paid, and against suits thereon the makers set up defences of fraud and Reed’s minority. From the first Patterson paid for Reed and himself, and also paid the taxes. That they had some arrangement respecting the land and payment of the notes is manifest from the testimony of Reed, rvho had much difficulty in telling about it because of the plaintiff’s objections, some of which were very strange. Patterson was neither a minor nor aged and infirm, but of mature and vigorous mind, so that it is not pretended he could have been easily overreached in a bargain. He cared for Reed’s interest, and shows no renunciation by Reed for nearly three years after he arrived at majority; nor did he himself, during said time, complain of fraud.

Aside from the testimony of the grantees there is no evidence to impeach the deed. Nobody else knows of such streets as they claim, either on the ground or on a plan. Those who purchased the adjoining lands heard nothing of any streets, save those mentioned in the deed to Patterson and Reed. That description of a private way is persuasive that no other was included in the grant. Naming one excludes others. The land for sale was divided into parcels on the plan — each parcel containing a number of acres— but no piece was subdivided by streets and alleys and into lots, as if for a village. Ample facility was given to reach the township road, and no inference can reasonably be drawn that more was intended than expressed. But it is competent to prove the allegations of the bill and overcome the answer, consistent as it is with the deed; and the inquiry is, whether this has been done by testimony that ought to move a court to decree a rescission.

There is a material difference between circumstances which require a chancellor to forbear and those which require him to act. On a question of specific performance he may choose to be silent; and his action, being of grace and not of right, is to be directed by a sound though legal discretion. But circumstances proper for a rescission, involving as they do the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is, that though equity would refuse to interfere for purposes of execution whenever it would revoke, it may refuse to revoke when it would decline to execute: Delamater’s Estate, 1 Whart. 362. In all cases where the cancellation of a contract is sought on the ground of fraud, courts of equity should maintain the principle that no relief be given unless a distinct case of fraud be clearly proved : Story’s Eq. Jur., sect. 694 a. It is an invariable rule in equity that where the defendant, in express terms, negatives the allegations of the bill, and the evidence is only of one person, affirming as a witness what has been so negatived, the court will simply dismiss the bill: Story’s Eq. Jur. 1528. The rule is well settled that there cannot be a decree upon the facts charged in the bill and denied in the answer upon the deposition of a single witness. There must be two witnesses, or concurring circumstances to supply the place of a second witness, before there can be a decree against the answer: Smith v. Brush, 1 Johns. Ch. 459. The rule was established when a party or interested person could not be a witness. Then one disinterested witness was not sufficient to authorize a decree against the answer of a party. Now parties and interested persons are competent witnesses, and in many cases it would be easy to call two plaintiffs and fill the letter of the rule, and in all a plaintiff and one other, or a plaintiff and corroborative circumstances, constitute the number. The spirit of the rule remains, requiring proof of the facts charged and denied to be clear and satisfactory by undoubted evidence of two witnesses, or one witness and the equivalent of a second. In equity the disputed facts are not settled by a jury, and it is the policy in Pennsylvania, so far as practicable, to conserve the right of trial by jury. The grantees who charge fraud generally have an ample remedy by action at law, or by defence against an action for the purchase-money, if that has not been paid. If there be no proof of fraud, except their own testimony,' it must be an extraordinary case to warrant a court of equity to set aside the deed. We think it would be a dangerous precedent to rule that upon the ’sole testimony of the dissatisfied parties to an executed contract, which had not turned out so well as they had expected, they may of right demand its rescission by a chancellor.

Here the witnesses are the grantees. If there be corroborative evidence it is overbalanced by the express grant of the right of way. Eor considerable time the purchasers were satisfied. They have remedy by action for damages if the unpaid purchase-money is not enough to cover the injury for the alleged fraud. We see nothing in the case to justify a conclusion that rescission in a court of equity is the only adequate relief; but, be that as it may, upon the whole case we are satisfied that the fraud charged is not so proved that a chancellor ought to act.

Decree reversed, and it is now considered and decreed that the bill be dismissed, without prejudice in any action at law, and that the costs, including costs of this appeal, be paid by the appellee.