DocketNumber: Appeal, No. 127
Citation Numbers: 77 Pa. Super. 227, 1921 Pa. Super. LEXIS 243
Judges: Head, Henderson, Keller, Linn, Orlady, Porter, Trexler
Filed Date: 7/14/1921
Status: Precedential
Modified Date: 10/19/2024
Opinion by
Sometime prior to the institution of this suit the premises in controversy were owned by four brothers as ten
At the trial it appears to have been conceded there was no defense as against the claim of the children of Joseph to recover the undivided one-fourth of the property and the case proceeded in order to determine whether or not William J. and his brother Peter had parted with the interests they confessedly had owned so that the same became vested in Dennis, the deceased husband of the defendant. It appears that for a considerable period before his death, Dennis had been in the actual occupation of the property and that possession was continued by his widow down to the time of the trial. The public taxes against the property had been permitted to become in arrears for a period of time and in an amount not shown by the record. Because of the default of the owners in the payment of these taxes, the property was put up to be sold by the sheriff. The defense set up is that the two surviving brothers, now parties plaintiff, entered into a parol agreement with their brother Dennis that they would sell to him their undivided shares for the purchase price of $333.33 for each share. It is alleged that in order to carry out this arrangement it was agreed the sheriff should proceed with the sale; that Dennis should become the buyer and take title, and then pay to his two brothers the purchase money already indicated.
Now it is conceded that the sale by the sheriff, in and of itself, to one of the tenants in common, could not and did not divest the title of his cotenants. If that title has ever been divested, it must have been because of the parol arrangement already referred to. Parol agreements for the sale of land are forbidden by the statute of frauds. Certain exceptions to the universal operation of that principle have been recognized in cases where the enforcement of the letter of the law would create a fraud rather than prevent one. Neither the industry of counsel nor any independent research made by the court has disclosed any case where a parol agreement for the sale of land was recognized or upheld in the absence of any payment of the purchase money alleged to have been agreed on or any change in the possession taken in pursuance of the agreement. The record here shows that neither one of these two fundamental requisites exists in this case. The difficulty that would arise under such circumstances, even between strangers, becomes about insurmountable when the transaction is between tenants in common: Galbreath v. Galbreath, 5 Watts 146; Workman v. Guthrie, 29 Pa. 495; Hill v. Meyers, 43 Pa. 170, and Lincoln v. Africa, 228 Pa. 546.
But it is urged that even if, under the circumstances existing here, the alleged parol agreement was not sufficient to carry the title of his two brothers to Dennis, it was sufficient to estop them against any attempt to enforce their title as against the party to whom they had agreed to sell it. We can discover nothing convincing in this argument. The situation was known to all of the • parties and if there was any difference between them, it appears the advantage would be in favor of Dennis, who
At the conclusion of the trial the learned judge submitted to the jury certain questions of fact as to the existence of the alleged parol promise to sell at the price stated. The jury found a verdict in favor of the children of Joseph Smith, deceased, to the extent of an undivided one-fourth and fixed their share'of the mesne profits in dollars and cents. As to the two surviving brothers, Peter and William, they found a verdict in favor of the defendant. Afterwards, upon consideration of a motion for judgment n. o. v. for the plaintiffs, the court below was convinced there was no evidence that was sufficient to justify a submission to the jury of the question of the alleged parol sale or agreement to sell, and entered a judgment in favor of these two plaintiffs for an undivided one-fourth each and then awarded a new trial “for the purpose of determining the amount, if any, of damages due and payable by the defendant to the said William J. and Peter S. Smith in the nature of mesne profits for the detention of the land.” This leaves the entire record in an anomalous situation likely to be provocative of trouble in the future. As long ago as Boyd v. Cowan, 4 Dallas 138, it was held that mesne profits could be recovered in ejectment by way of damages. Later on the question arose whether such recovery could be had in the absence of a notice that the plaintiff intended to prove on the trial and seek recovery for mesne
There is another, unnecessary difficulty raised by the situation in which the record now stands. A judgment is the end of the controversy between the parties. Everything litigated under the pleadings, and indeed every question that should have been tried and determined upon the issues raised, is presumed to have been determined. The judgment, resulting from the trial, might well be pleaded as a former recovery to prevent further litigation of what was fairly in issue in the proceeding which ended with the judgment. Now when the plaintiffs gave notice in their praecipe that they sought to recover not only the undivided three-fourths of the land but the same share of the rents, issues and profits that had accrued since 1914; and when the defendant entered her plea of “not guilty,” the subject for litigation and determination was not merely the right of possession of the land but as well the amount of mesne profits, if any, that would follow a wrongful detention of it from the true owners. It is easy to conceive of situations where the plaintiff, especially in cases of tenants in common, might be entitled to recover possession of the land and yet could show no right to recover any mesne profits at all. It is because of these considerations that we have determined to set aside the judgments entered and send the entire case back for a retrial so that the jury may render a proper verdict and a judgment may be entered thereon which will leave no room for further contro
The judgment is reversed and a venire facias de novo awarded.