Reno v. Moss , 120 Pa. 49 ( 1888 )

Opinion,

Mr. Justice Williams:

This is an equitable ejectment in which the plaintiff’s title rests upon an alleged parol contract for the purchase of a house and lot in the city of Reading,, The important question raised by the assignments of error is, whether the proof of the contract and of the part performance of its terms, is sufficient to take the case out from under the operation of the statute of frauds. The plaintiff is in effect seeking a decree of specific execution, and the burden is on him to show, first, a contract complete in its terms; and next, such partial performance by the parties including a taking of possession in pursuance of the contract as to make it unjust and inequitable to rescind it. This .must be shown by evidence that is clear, unequivocal, and convincing, so as to satisfy fully the conscience of a chancellor; for, to be in doubt about the existence or the sufficiency of the contract is to be resolved against its execution. These general principles are well settled and have been often asserted by this court. Some of the many cases in which they are stated and discussed are McKowen v. McDonald, 43 Pa. 441; Hart v. Carroll, 85 Pa. 510; Bowers v. Bowers, 95 Pa. 477; Lord’s Appeal, 105 Pa. 451.

The trouble in this class of cases is not in ascertaining the rules of law that are applicable, but in making an application of them to particular cases. In the case at bar, both parties claim under Daniel Miller now deceased. Moss alleges that his grandfather Joseph Henry, bought the house and lot in the spring of 1866, by verbal agreement under which he took possession and paid the purchase-money. He then shows the death of Joseph Henry in 1870, leaving a son and daughter; the death of the son intestate and without issue, and the death of the daughter of whom he is the only child. He is therefore the only living descendant of Joseph Henry, and claims title as heir-at-law. The defendant denies' the existence of the alleged contract, and shows a deed duly recorded made to him by Daniel Miller, for the house and lot.

In support of the alleged parol contract the plaintiff’s evidence, aside from the receipt of March 13,1866, to which we will presently refer, consists of a note of March 13, 1866, for $2,250.00 found among the papers of Joseph Henry after his death, of a mortgage for $5,000, given by Miller to Clymer covering the property in controversy, together with proof that the money to satisfy it was paid by Henry, and of declarations of Miller and acts and declarations of Henry, including the fact that he went into possession of the house in the spring of 1866, and remained in possession till his death, and made some repairs thereon. There was, however, no evidence showing the terms of any contract of sale; and the character of Henry’s possession, whether as tenant under Miller, or as a purchaser, was a question about which there was much conflicting testimony. Both the alleged payments were in like manner denied and the money with which the Clymer mortgage was paid, was asserted to have been furnished by Miller.

It also appeared that in 1871 Miller brought an action of ejectment against the widow and son of Henry, who were then in possession of the house and who declined to pay rent. That case came on for trial in 1873, and the defendants put in evidence substantially the same facts and circumstances in support of the same alleged parol contract by way of defence to the action of Miller, as we have seen, were put in evidence by the plaintiff in this action in support of his title. The learnéd judge of the Common Pleas, the late Wabben J. Woodward, afterwards a member of this court, held that the evidence was insufficient to establish the parol contract set up, and directed a verdict in favor of Miller. Upon this verdict judgment was entered, a writ of habere facias issued, and Miller put in possession by the sheriff. This action was brought by Moss in 1880. The evidence upon the trial differed from that before the court in 1873, chiefly in the fact that the plaintiff produced and put in evidence the receipt of March 13, 1866. It is as follows:—

“$2,250.

Reading, Pa., March 13,1866.

Received of Joseph Henry $2,250 as payment in full for house No. 228 North Sixth street.

Daniel Miller."

This receipt bears the same date with the note found among the papers of Henry after his death, and is for the same amount; and the theory set up by the plaintiff is, that the note was accepted as cash by Miller in settlement for the balance due upon the purchase-money, that the receipt was given to show that the transaction was closed, and that it affords a sufficient .memorandum in writing of the terms of the contract and the payment of the purchase-money to take it out from under the operation of the statute of frauds.

Without this receipt there was no sort of proof of the contract. It was not produced on the trial of the action of ejectment in which the widow and son of Henry were defendants in 1873, and its genuineness is very earnestly attacked. It is important, therefore, to examine the testimony relating to it in order to determine to what extent a chancellor should be moved by it. Moss, the plaintiff, testifies that he found it in an old trunk belonging to his grandmother, Mrs. Henry, at the Widow’s Home in Reading a few weeks before she died in 1883 or 1884. He describes tbe circumstances thus : “ I did not look after the paper until she called my attention that there was some papers, and was silk dresses of my mother’s and the family, and small scraps and papers, and old books, German books and the like that were in there. She said she thought she was getting old and feeble and that I had better look through, and as I looked through I found these papers.” He further says that the old trunk was very nearly full of scraps of silks and cambrics and linens and old books, and that they were all lying loose in the trunk.

The paper is dated March 13, 1866, and this discovery was made by Moss, as he says in 1883 or 1884, some eighteen years afterwards. It was found in the trunk of the widow of Henry who had a verdict rendered against her and her son in 1873, for want of just such proof of the terms of the contract. Four witnesses testified to their belief that the signature of Miller to the receipt was in his own handwriting, and it was admitted in evidence. The defendant called a large number of witnesses who testified that the signature was not Miller’s, and several experts, who expressed the opinion that the paper at the time of trial was not more than five or ten years old, that it was written in ink not in use at the date of the paper, and that the appearance of age in the color of the paper was due to the use of chemicals. In addition to this direct attack upon the receipt, the defendant produced and gave in evidence for the purpose of contradicting the statement contained in it the following papers, viz.: An unsigned memorandum in the handwriting of Daniel Miller containing this statement:—

“Note, March 10, 1866, Miller to Henry, . $1,262.75

Due bill, March 10 1866, Miller to Henry, 987.25

$2,250.00”

Also the note and due bill referred to in the memorandum signed by Miller, and a receipt purporting to be signed by Joseph Henry, in the following form:—

“ Received of Daniel Miller, his note, at 60 days, for $1,262.75, and his due bill, for $987.25, in consideration for my note, dated March 13,1866, for $2,250.00. Joseph Henby.”

These papers taken together made a most effectual answer to the receipt found in the old trunk. If they were genuine, the plaintiff’s receipt could not be; and, on the other hand, if the receipt was an honest paper, the entire set of papers produced by the defendant were forgeries.

Our question now is, whether this receipt which was attacked at every point, furnishes the clear, unequivocal, and convincing proof of the existence and terms of the parol contract, on which the plaintiff’s title depends, that should move the conscience of a chancellor and induce a decree for specific performance. Without the receipt the plaintiff is without a case. With it, if its genuineness was satisfactorily established, he might be entitled to relief. But the balance of the evidence is against its genuineness, largely, if not overwhelmingly so. The very least that can be said is, that the character of the receipt is involved in painful uncertainty. Instead of the feeling of confident belief which is necessary to move a chancellor, the evidence leaves room only for perplexing doubt or positive distrust. For this reason alone, specific execution ought not to be decreed. In addition to this, the verdict against this contract, rendered in 1873, was conclusive as to the one half of the title of Joseph Henry, which descended to his son Benneville. That verdict may not be conclusive upon the title of Mrs. Moss, the other child of Joseph Henry, who was not a party to that action, but upon substantially the same facts, it is strongly persuasive. But it is unnecessary to lay stress upon the persuasive value of that verdict, for there was no such proof of the existence and terms of the contract as to move a chancellor to decree specific performance. This action being a substitute for a bill in equity, it is the duty of a judge to withdraw the evidence from the jury, if sitting as a chancellor he would regard it as insufficient to justify a decree. The second, third, and thirteenth assignments of error are sustained.

Here we might with propriety dismiss this case, but for the circumstance that the learned judge of the court below seems to have treated this action as indistinguishable from the ordinary action at law, in the relative functions and powers of the judge and the jury, and to have regarded the verdict as conclusive of the question submitted to the jury. But in Pennsylvania, an action of ejectment on an equitable title to land is in effect a bill for specific performance, and therefore governed by the general principles of equity: Deitzler v. Mishler, et al., 37 Pa. 83; Remington v. Irwin, 14 Pa. 143. A decree of specific execution will therefore depend on the justice and equity of the case presented: Remington v. Irwin, supra; and a recovery will not be permitted, unless “equity and good conscience entitle a party to the intervention of a chancellor.” This doctrine is clearly stated by Thompson, C. J., in Piersol v. Neill, 63 Pa. 420, who states that it is “ as truly the rule in an equitable ejectment as it is in a bill in chancery.” To the same effect are Peebles v. Reading, 8 S. & R. 484; Tyson v. Passmore, 2 Pa. 122; Greenlee v. Greenlee, 22 Pa. 225.

In a proceeding by bill, if a chancellor sends an issue to a jury, he is not bound by the verdict. It is in ease of his conscience merely, and if the verdict does not satisfy his conscience he may set it aside as often as he pleases or make his decree in utter disregard of it: Brightly’s Eq. Jurisp., §§ 758, 759. That substantially the same rule prevails in equitable ejectment was very distinctly stated by Gibson, C. J., in Brawdy v. Brawdy, 7 Pa. 157. “In ejectment,” said the Chief Justice, “ as upon a bill in equity, whatever would affect the conscience of a chancellor is to be taken into consideration.” Again, when speaking of the duty of the chancellor and his complete independence of the action of a jury, he says: “ But even when a chancellor sends such an issue to a jury, it is only as an advisory council and in ease of his conscience ; for he may direct any number of new trials or decide at once in opposition to the verdict.” The doctrine that the enforcement of a contract°by a decree for specific performance is of grace and not of right is applicable to equitable ejectment as truly as to a proceeding by a bill. This was. so held in Piersol w. Neill, supra. Thompson, C. J., who delivered the opinion in that case uses this language : “ Every element that would induce a chancellor to withhold his hand in a court of chancery, will control and move a judge in administering the equities between the parties in an equitable ejectment.” Dougan v. Blocher, 24 Pa. 28, was an equitable ejectment. In reversing the judgment of the court below entered upon a verdict this.court said: “ The error of the court below consisted in committing such a case to the speculations of the jury; ” and in discussing the duty of a judge in this form of action the court further said, “ A chancellor calls a jury to his aid only when the material facts are in doubt and conflict, and then only to inform his conscience.” In Church v. Ruland, 64 Pa. 432, the action was ejectment upon an equitable title, and the distinction to be taken between that form of action and an ordinary action at law is very plainly brought out by Sharswood, J., in the opinion of the court. He says: “ The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any eviolence reasonably tending to prove a fact must be submitted to be passed upon by that tribunal. The conscience of the judge as a chancellor must be satisfied, and what goes to the jury is to determine the credibility of witnesses and to weigh or decide upon conflicting evidence. What is this but the trial of a feigned issue out of chancery? If the evidence is too vague, uncertain, or doubtful to establish the equity set up, even if believed it is the duty of the judge to withdraw it from the jury.” Equally clear is the language of WOODWARD, J., in Moore v. Small, 19 Pa. 461, which was an action of ejectment in which an alleged parol contract passed under judicial scrutiny. In discussing the duties of a judge and the manner in which they are sometimes abandoned by a submission ■ of the whole ease to a jury he says: “ The judge Mots himself out and surrenders his functions to the jury, who, more- affected by the supposed hardsMp of the ease than by the policy of the statute, blot out in their turn that venerable and valuable rule of property. But how is this to be prevented ? In no otherwise than by the action of the judge as a chancellor which he really is.”

From this review of the cases it is quite clear that in an equitable ejectment the judge sits as a chancellor; that it is his duty to “ view and weigh facts for himself,” and to withdraw the evidence from the jury when it is not such as ought in equity and good conscience to induce a decree of specific execution. Whether the doubt arises from the insufficiency of the facts alleged if found by the jury, or the insufficiency of the evidence to justify a finding in favor of the alleged contract, is of no consequence. It is the existence of the doubt, however arising, that stays the hand of the chancellor. Unless upon the whole evidence the conscience is moved, the decree should be withheld. That this should be so, seems as evident upon principle as it is upon authority. The plaintiff and all persons similarly situated have an election between two remedies. They may seek the specific execution of the contract which they set up, by bill or by an action of ejectment. Either remedy brings them before the same judge, upon the same contract, and with the same evidence. It would be an inconsistency, not to be tolerated, if the conscience of the chancellor could be bound by the verdict of a jury in an action of ejectment, rendered upon evidence which, if presented to him in a proceeding by bill, he would turn away from as too uncertain, too much in doubt, to use no stronger terms, to justify a decree.

A verdict in an equitable ejectment has no such power. The conscience of the chancellor must be satisfied by the evidence, and if it is not so satisfied, a verdict if rendered cannot bind him. He may set it aside as often as his sense of justice may require it. If at the conclusion of the case the evidence taken as a whole is of such a character as to make a verdict a mere guess by the jury, he may, and should decline to submit it. If the fair balance of the evidence is against the contract set up, so that sitting as a chancellor he would refuse a decree, he should withdraw the case from the jury. His duty is to do that which in right and equity ought to be done. Every prayer for relief is an appeal to his conscience upon the equities, the intrinsic merits of the case presented. If the plaintiff’s equities are not clear, if his hands are not clean, if the relief he asks is not conscionable under all the circumstances, he has no standing before a chancellor, no matter what may be the route by which the case reaches him. In an ordinary action at law the facts are for the jury. Where a verdict has been rendered, the question is not whether the judge would have found the facts in the same way from the same evidence, but whether there was evidence before the jury, which if credited by them would support their verdict. They are the judges of the credibility of the witnesses, and they may believe when a judge would reject the testimony of a witness. But in an issue out of chancery and in an equitable ejectment tbe question is: Does tbe verdict seem to tbe chancellor to be a fair and conscionable conclusion from tbe testimony? Does it satisfy his conscience? If not, tbe responsibility is still on him notwithstanding the verdict.

In this case we have shown by a glance at the evidence that the plaintiff’s contract passed under the examination of the Court of Common Pleas in 1873, and was properly rejected, there being no proof of its terms. The alleged receipt found ten years later, besides the remarkable story of its discovery, was discredited by the clear balance of the testimony on the question of its having been executed by Miller, by the testimony of the experts in regard to the ink with which it was written, and the use of chemicals to produce an appearance of age. The papers, having the same date, explanatory of the transaction to which the receipt relates, which were produced by the defendant, were absolutely overwhelming, unless shown to be fraudulent. Upon the whole case a chancellor could not hesitate for one moment as to his duty to refuse a decree. Why should he blot himself out, that the jury might in turn blot out the statute of frauds and perjuries when it was his duty to apply it ?

The evidence did not justify the verdict, and it should not have been submitted to the jury.

Judgment reversed.