Hashagen v. Keal

Argued March 5, 1924. Plaintiff filed a bill against father and son for specific performance of a written contract to sell a farm. The decree ordered each to convey the title by him held. The father alone appealed; he has not brought up the oral evidence, desiring our review only of the rest of the record.

The farm had been owned by the father, William Keal, who sold it to Rocco Lasco; on a judgment held by him against Lasco, it was sold by the sheriff on a thousand dollar bid to the same William Keal, March 11, 1916. He settled his bid with the sheriff for $275, and title was taken in his son, Albert C. Keal, the other defendant, a young unmarried man, living with his father on a farm adjoining the one that is the subject of this dispute. Of this defendant son, the court below said: "He was a cipher in this transaction and in all the subsequent history of the case. After the sheriff's sale, while the legal title stood in the son's name, the visible possession, ownership, and control was in the father with the son's acquiescence for every purpose of farming, leasing, collecting and appropriating the rent as he pleased." There is nothing before us to contradict that.

On April 22, 1916, by deed soon recorded, the son, for a nominal consideration, conveyed to the father a small part of the farm with a spring on it, described as follows:

"That certain tract of land containing said spring, bounded by a circle described by a radius five feet in length with said spring as the center of said circle, and also the full right, liberty and privilege of maintaining and repairing the pipe line, and to enter upon the lands of said Albert C. Keal, ...... his heirs, assigns and successors, however, to have the right to take from the main pipe line by a branch pipe sufficient water for his own use so long as it does not interfere with a sufficient flow for the use of William Keal, his heirs, successors, and assigns, c."

This spring is near the center of the farm and, as the court below found, is the only source of water on it, and a "very valuable feature" of it. The court below also said "plaintiff could not know that the spring was reserved and there was nothing upon the ground to indicate to him any reservation of the spring by William Keal. ....." In 1919, the son executed an informal writing, authorizing the father to sell "my property on the road to Freeland. ....." In 1920, the father, who, as the court found, had all along been "in exclusive and absolute possession of the whole," made, under seal, the written agreement of sale, sought to be enforced in this suit. It was drawn by a justice of the peace and recited that the father was acting "under letters of attorney issued by" the son, and provided "that the said William Keal agrees to sell [to plaintiff] all that certain tract of land situate in Butler Township aforesaid, purchased at sheriff's sale in Wilkes-Barre on April 3, 1916 [the date on which the sheriff acknowledged the deed to the son] and containing fifty-nine acres and seventy-two perches, neat measure, together with all the buildings thereon and the improvements, all growing grain, with the appurtenances, at and for the sum of Four Thousand Dollars, which said sum the said Fred W. Hashagen agrees to pay for the same in manner following; to wit; One hundred dollars upon the execution of this agreement, and the remaining Thirty-nine Hundred Dollars on April 1, 1920, upon delivery to him of a good and lawful deed in fee simple, free from all encumbrances, the expense of the conveyance to be borne by the said William Keal." It is also provided that William Keal should have "the privilege of using the barn on said premises" for storage, subject to specified conditions; that he would transfer "his interest in all insurance on the buildings" at an agreed price; he also agreed to sell various kinds and quantities of grain. It will be observed that for some matters the father acted as agent for the son, the holder of the record title, and for others, as a principal. At that time plaintiff did not know of the conveyance by the son of the legal title to the spring, but believed, as the court below found, "that he was buying the whole, and he would not have bought without the spring, which constituted a most material inducement and element of value."

On February 2, 1920, plaintiff entered into possession of the property with the approval of both defendants, and remained there, making substantial improvements, with the personal assistance of the son. As agreed, the parties met for settlement, April 1, 1920, at the office of the justice who drew the agreement, who, as the court below found, "seems to have acted in an advisory way." Plaintiff was there with the money; defendants came and presented a deed executed by the son only. The court found: "The justice read it over carefully and pointed out that the spring was excepted in nonaccordance with the agreement, and plaintiff refused to accept the same. The Keals undertook to make it satisfactory, and a few days later the parties came together again in the office of plaintiff's attorney, plaintiff with the money, the Keals with another deed, which, however, on examination by the attorney, was found still to contain the objectionable exception although improved in other respects. Plaintiff tendered the money, demanding deed without the exception, and defendants tendered deed with the exception, and thus the matter stood." Various suits, among them, this, followed.

1. Appellant contends that the statute of frauds prevents the decree. We do not so understand it. As the court below says: "The agreement indicates the quantity of land as 59 acres and 72 perches, neat measure; located in Butler Township; admitted by Albert in his answer to be the only land owned by him in said township; purchased at sheriff's sale at Wilkes-Barre; deed acknowledge on April 3, 1916, duly recorded in this county; possession immediately taken by plaintiff in pursuance of the contract; improvements made thereon by plaintiff; possession maintained up to the present time, and the spring in controversy on the land." That was sufficient: Hart v. Carroll, 85 Pa. 508, 510; Schmidt v. Lieberum, 51 Pa. Super. 591,596; Farmakis v. Crown, 271 Pa. 140, 143.

2. Appellant's second contention is that father and son should not have been joined as defendants. The agency, and the state of the record title, required their joinder. Their own conduct made them necessary parties to granting adequate relief. The son was ordered to convey the property described in the sheriff's deed to him, excepting the land and spring by him conveyed to his father; and the father was ordered to convey "the spring and land contained in deed [by the sheriff to Albert C. Keal] and conveyed to him by Albert C. Keal."

3. Appellant also complains that in two instances his requests for findings of fact were answered "refused as an entirety"; on the record brought up, we find nothing prejudicial to appellant in these answers.

The decree appealed from is affirmed at the cost of appellant.