Huffman v. Huffman , 118 Pa. 58 ( 1888 )

Opinion,

Mr. Justice Paxson:

We are unable to see any error in the affirmance of the plaintiffs’ fourth point. The defendant claimed title to the land in controversy under a parol gift from his father and mother, by virtue of his possession and improvements in pursuance thereof, and also under the statute of limitations. The plaintiffs’ fourth point asked the court to instruct the jury that, “If Mrs. Huffman was the owner of the whole of the land in controversy any parol gift of it to the defendant by her, or by her and her husband, would be a nullity as to her, although the gift may have been followed by such possession and expenditure for improvements as would take a case between parties competent to contract out of the statute of frauds and perjuries.” The court affirmed this point and instructed them that if Mrs. Huffman was the owner, any parol gift of it to the defendant, or by her and her husband, would be a nullity as to her.

The only mode by which a married woman can convey her real estate in Pennsylvania is by a deed in which her husband is joined. This is by virtue of the act of assembly, and the principle is too well settled to require argument or the citation of authority. I will refer, however, to Trimmer v. Heagy, 16 Pa. 484; Peck v. Ward, 18 Pa. 506; Ulp v. Campbell, 19 Pa. 361.

A number of cases were cited by the plaintiff in error, however, to show that a married woman who has made a parol gift of lands may by her acts be estopped from denying such gifts, as where she has encouraged her grantee to make improvements and do such acts as would amount to a fraud in case she were afterwards to repudiate them. We may dismiss this branch of the case with the remark that it was not tried below upon the theory of estoppel, and the learned court was not asked to instruct the jury upon it. Nor does the evidence furnish any sufficient grounds to apply such a principle, even though the cases cited sustained it. We may further remark that most of the cases refer to the transfer of personal property, which do not come within either the act of 1770 or the act of 1848, regulating the transfer by married women of their interest in real estate.

In regard to the statute of limitations it is sufficient to say that the act of April 22, 1856, P. L. 532, fixes thirty years as the period when persons under disabilities are barred. The defendant’s proof did not come up to this standard.

There are numerous assignments of error in the case, but they are carved out of the first. We . have referred to the only two questions which are of importance.

. Judgment affirmed.