text:
    Burd’s Executors versus Patterson.
    1. Since the Act of 21st March, 1824, relative to the sale of unseated lands for taxes, the limitation of five years begins to run from the time of the delivery of the treasurer’s deed to the purchaser, and not from the time when possession was taken in pursuance of it. See Sheik v. McElroy, 8 Harris 25.
    2. In the case of a sale made in 1832, no ejectment by the owner having been brought within the period of five years from the delivery of the treasurer’s deed: it was Held, that he was barred, though his agent had been informed by the county treasurer, before the sale, that the taxes on his lands had been paid.
    3. Where either the purchaser or the owner of such lands must suffer, the loss should fall on the latter who neglected to pay his taxes.
    4. Though no bond for the surplus was given at the time of the tax sale, hut one was given within two years thereafter, the irregularity was cured by the lapse of the period prescribed by the statute without ejectment by the owner or other person claiming under him.
    Error to the Common Pleas of Jefferson county.

    This was an action of ejectment to September Term, 1851, by-Eliza H. Burd and others, executors of the will of Edward S. Burd, v. John Patterson, James Wilson, and Ninean Cooper, to recover the possession of above 305 acres of land. The land was claimed under a lottery warrant No. 157, granted to Joriathan D. Sergeant, on the 17th May, 1785, for 300 acres, and a survey made in pursuance of said warrant on the 9th day of November, 1785, of 305f, which survey was returned and accepted on the 25th August, 1786.
    On the 5th day of October, 1787, a patent issued to Edward Burd, for this tract No. 157, called “ Burd’s Choice,” the title of Jonathan D. Sergeant therein having become vested in the said Edward Burd.
    On the 9th day of July, 1828, Edward Burd, by his deed of that date, conveyed to Edward Shippen Burd, which deed was acknowledged on the 19th July, 1828, thus vesting the legal title in Edward Shippen Burd.
    On the 31st day of January^ 1848, Edward Shippen Burd made his last will and testament, in which he constituted and appointed Eliza Howard Burd, Eli K. Price, and Joseph B. Townsend, the aforesaid plaintiffs, executors of his said last will and testament, with power to sell his lands in counties other than the county of Philadelphia, commonly called “ Back lands,” for the purpose of creating a fund in the hands of the said executors, to he applied towards the due execution of the said will, as and when the same might be found necessary and convenient. This will was proved before the register of the city and county’of Philadelphia on the 23d day of September, 1848; and on the 28th day of September, 1848, letters testamentary were granted to the executors.
    The defendants relied upon an assessment and sale of this tract No. 157, for taxes for the year 1830 and 1831. In 1830, tract No. 157 was assessed in Ridgeway township as follows:
    Acres. Val. Tax.
    1830, No. 157, Jonathan D. Sergeant, 305½ 305.50 $>1.05½
    1831, No. 157, “ “ 305½ 305-50 1.53
    upon which assessment a sale was made by J. B. Evans, treasurer, to Elijah Heath, in June, 1832, and on the 10th September, 1832., a deed was acknowledged by said treasurer, to E. Heath, for tract No. 157.
    From the treasurer’s sale list it appeared that the tract was sold for $50. A bond for surplus was not given at the time of the acknowledgment of the deed, but one was given dated 7th February, 1833.
    On 29th December, 1834, Elijah Heath and wife conveyed 150 acres of this tract to Jacob Moore, by deed of that date, and on the 6th day of October, they conveyed 50 acres more to Ninean Cooper. On the 6th September, 1846, E. Heath sold 100 acres, the residue of the tract, to James Wilson, by articles of agreement. It also appeared in evidence, that Elijah Heath, and those claiming under him, paid the taxes from 1834 up to 1843.
    James Wilson took possession of the land in 1846 or 1847, and when this ejectment was brought in 1851, considerable improvements had been made on the land.
    To avoid the sale by the treasurer for the taxes of 1830 and 1831, the plaintiffs proved that their testator wrote to Stewart Steel, in 1830, to pay the taxes on this tract of land, with others in Jefferson county; that the latter paid the taxes for the years 1828 and 1829 ; that, in May, 1832, he wrote to Jared B. Evans, then treasurer of the county, relative to the taxes on the lands of Mr. Burd. The letter was not exhibited at the trial, but the treasurer, on May 14, 1832, wrote to him: “ I received yours, and in reply I have to say the taxes on the lands of Edward Burd are settled for the years 1830 and 1831.”
    A letter from J. M. Stedman to Mr. Steel was. produced. It was dated on July 31, 1834, and informed him that the lands were sold in 1832, and bought by E. Heath. It further appeared that in or about 1842, Burd requested suit to be brought for the land, but no ejectment was brought till 1851. Stewart Steel testified that in 1830 he paid the taxes for 1828-9; that he did not remember of giving the names of the tracts in his letter to Evans; he supposed he described them as they were described to him by Mr. Burd. Pie said that he advised Burd of the sale, hut he did not know when—he knew the time for redemption had expired.
    J. B. Evans, the former treasurer, was examined. He said he recollected of getting a letter from Mr. Steel in reference to the Burd lands. There were lands in the county in name of Edward Burd, and from the tenor of his answer, he should think the inquiry was made as to the Edward Burd lands in general terms; hut it might be otherwise. The taxes were paid on the “ Edward Burd lands” before the date of his letter. That he knew of no other lands belonging to a person by the name of Edward Burd. That he .made search for the letter, and thought it was destroyed. He further said it might be possible that the letter referred to the tracts by their number.
    On the trial, points as follows were submitted on the part of the plaintiffs: 1. That the treasurer’s sale is invalid, no surplus bond having been filed until after the expiration of two years from the sale. 2. That if the jury rely upon the testimony of Stewart Steel that he had charge of the lands, and wrote to the treasurer, in reference to the taxes of the lands referred to in Mr. Burd’s letter, and received the answer read in evidence, the legal title "would not be divested by the treasurer’s sale. 3. That if the testimony of Stewart Steel is relied upon, the defendants cannot avail themselves of the five years’ limitation.
    On the part of the defendants, the Court was asked to charge that a period of more than five years having elapsed between the time when the land in dispute was sold and a deed delivered by the treasurer to Elijah Heath, before the present action was brought, the action cannot be sustained.
    The Court instructed the jury to return a verdict for the defendants; and on 16th February, 1853, a verdict for defendants was rendered.
    It was assigned for error, that the Court erred in taking the case from the jury.

      Lucas, with whom was Purviance, for plaintiffs in error.
    It was contended that the treasurer having informed Burd’s agent that the taxes were paid, placed the land in the condition in which it would have been if the taxes had been paid ; that in that event the lands -would not have been liable to sale; that the treasurer, by omitting to perform his duties, could not occasion a forfeiture of the land: 5 W. & Ser. 540, Baird v. Cahoon; 4 Id. 146; 3 Pa. Rep. 112. It was said that the testimony on this point should have been referred to the jury.
    It was further said that the omission of the bond for the surplus, was not considered fatal in Ash v. Ashton, 3 W. & Ser. 516, because the owner had notice of the sale, and neglected to redeem or bring ejectment within the time designated.
    White, with whom was Coffey, for defendants in error.
    It was said that the evidence showed a sale of the lands in 1832 for taxes; that the testator knew of that sale as early as 1834, and that no suit was brought till 1851, during which time the taxes were paid by the treasurer’s vendee, and those claiming from him. It was contended that the plaintiffs were bound by the limitation provided in the 3d section of the Act of 3d April, 1804, which provides that no action for recovery .of lands sold for taxes shall lie, unless the same be brought within five years after the sale. That in cases not embraced in the limitation of two years, provided by the Act of 1815, relating to sales of unseated lands, the limitation of five years begins to run from the sale: 3 W. & Ser. 510, Ash v. Ashton; 4 W. & Ser. 164, McCall v. Himebaugh; 5 W. & Ser. 465, Bayard v. Inglis; 9 Barr 71, Robb v. Bowen.
    The testimony of Steel could not avoid the sale. In the case of Baird v. Cahoon, 5 W. & Ser. 540, the agent of the owner rvent to the treasurer, stated the names of the warrantees, and paid all taxes charged against the lands, so that the owner had no reason to suspect that any.taxes were unpaid. In the present case no money was paid. It was further said that the inquiry may have been in general terms; not specifying the tract in dispute. In the case of Baird v. Cahoon, the limitation of five years was not alleged in aid of the tax title. Statutes of limitation are made for those who, without the statute, may have no protection: 2 Pa. Rep. 504, Huston, J., in Bradford v. Dornseif.
    As to the bond for surplus, was cited Bayard v. Inglis, 5 W. & Ser. 465.
   The opinion of tire Court was delivered by

Lewis, J.

This was an ejectment brought by the original owner of a tract of unseated land; and the defence is founded upon a sale of the tract for non-payment of taxes. The sale took place in June, 1832, and the treasurer’s deed was executed in pursuance thereof on the 10th September, 1832. The ejectment was brought on the 22d May, 1851, nearly 19 years after the sale. There was evidence of conveyances of different parts of the tract to different purchasers under the tax title; and also evidence of the payment of taxes by those claiming that title from 1834 to 1843. But there was no evidence that the purchaser, or those claiming under him, had held actual possession of the tract for the period of five years before the ejectment was brought. It was shown that the title was out of the Commonwealth, and that the land was unseated at the time of the assessment and sale. It was in evidence that the tax was duly assessed, and it is not pretended that it was paid before the sale, or that the redemption money was tendered within two years thereafter. But it is contended that the sale may be avoided because the agent of Mr. Burd wrote to the treasurer of Jefferson county to ascertain what taxes were due upon the lands of Edward Burd, and was informed by the treasurer, on the 14th May, 1832, that “ the taxes on the lands of Edward Burd are settled for the years 1830 and 1831.” The letter of the agent to the treasurer is not produced, and there is some doubt whether it described the particular tracts in relation to which the inquiry was made, or merely inquired about “ the lands of Edward Burd in general terms.” The treasurer thinks that the inquiry was made in the latter form, and as the taxes were paid on the Edward Burd lands” (thus carried out in the books), and he knew of no other lands belonging to Edward Burd, he answered as already mentioned, that the taxes were paid. It is a general principle of law, founded on substantial justice, that where a loss must fall upon one of several individuals, it must be borne by him whose fault occasioned it.- It was certainly no part of the duty of the purchaser to attend to the payment of Mr. Burd’s taxes. That gentleman undoubtedly had the best knowledge of the extent of his own property and of the amount of taxes due upon it. He knew that he was in duty bound to pay his share of the public burthens, and that he had not performed that duty. If he neglected the payment in consequence of erroneous information derived from the treasurer, it is more just that he should seek his romedy against the latter, than that he should attempt to throw the loss upon the purchaser who paid his money on the faith of a public sale made by the officer of the law. This would seem to be in accordance with the justice of the case if the validity of the sale was still open to inquiry. But five years (indeed nearly four times that number of years) have elapsed since the sale; and the question is again presented whether since the Act of 21st March, 1824, the limitation begins to run from the sale, or from the time when possession zvas taken in pursuance of it.

That question has been repeatedly decided, and it is certainly time that it should be put at rest. The Act of 3d April, 1804, which created this limitation, distinctly and expressly fixed upon the sale as the time when the limitation began to run. The decision in Parish v. Stevens, 3 Ser. & R. 298, was in accordance with the express terms of the statute. But afterwards, on account of the supposed difficulty in bringing an ejectment against a purchaser who had not taken possession, the Court decided that the limitation did not commence running until the purchaser took possession: Waln v. Shearman, 8 Ser. & R. 357; Cranmer v. Hall, 4 W. & Ser. 36. In consequence of the decision in Waln v. Shear-man, the Act of 24th March, 1824, removed the difficulty supposed to exist in bringing ejectments against purchasers of tax titles who had not taken possession, and prescribed the manner in which such ejectments might be brought. Ratio est anima legis,” is a sound maxim of the law; and there can be no more appropriate occasion for its influence than when it restores the operation of a statute according to its plainly expressed meaning, after it had been defeated or suspended for a reason which no longer exists, and which the legislative power itself had taken care to remove, in order that the statute might not be obstructed thereafter. The provision in the Act of 1824, that any person now having a right of entry, because no actual possession had been taken of the land so sold, “might bring his action within two years” from the date of that Act, is an affirmative pregnant with a plain negation of the right to bring such actions after two years. The legislature did not assume the power to reverse the decision in Wain v. Shearman, nor to enact a law to operate retrospectively; but they determined that all sales theretofore made, which were subject to the indefinite limitation established by that decision, should be brought under the definite limitation of the Act of 1824. As this limitation was prospective, they had the power to enact it, and in doing so they plainly abolished the principle of Waln v. Shearman in regard to all rights of action then existing. To suppose that they intended to continue the principle for cases thereafter to arise, after the reason for it was abolished, and after the legislative condemnation which it had received, is to accuse them of a manifest absurdity. There was no reason for abolishing the principle in respect to rights of action then existing, which did not apply with still greater force against its continuance in cases thereafter to arise. The reason for its existence having been abrogated, and the plain letter of the Act of 1804 remaining in full force, they had a right to expect from the judiciary an intelligent and faithful exposition of the statute, according to its plain meaning. In Ash v. Ashton, 3 W. & Ser. 514, Mr. Justice Kennedy, in speaking of sales since the Act of 1824, declares that the limitation under the Act of 1804 commences from the sale. In Bradford v. Dornseif, 2 Pa. Rep. 503, Mr. Justice Huston tells us that the Act of 1804 limits the action to five years after the sale, and says that “ nothing can be more plain and positive; the law must be enforced or repealed by the Court, it cannot be mistaken or misunderstood.” In Robb v. Bowen, 9 Barr 71, the point was distinctly decided by this Court that since the Act of 1824 the limitation commences from the sale, and not from the time when possession is taken by the purchaser. In Sheik v. McIlroy et al., 8 Harris, the same principle was again decided.

It may be supposed that the cases of Bigler v. Karns, 4 W. & Ser. 137, and Shearer v. Woodburn, 10 Barr 512, are adverse in some respects to the principles of Robb v. Bowen and Sheik v. McIlroy. But this is a mistake. It is essential to the validity of every tax sale that the title must be shown to be out of the Commonwealth. If this be not shown it is not subject to assessment and sale, and there is a total want of jurisdiction over it. In Bigler v. Karns it was held that the lapse of five years with possession taken of part of the tract, not the part in dispute, under a deed for that part from the purchaser at treasurer’s sale, did not dispense with proof that the title was out of the Commonwealth. This was all that was decided in that case, which in any manner touches the question before us, and we fully subscribe to the decision. In Shearer v. Woodburn no question was raised under the limitation of the Act of 1804, or under that of the Act of 1824. The tax title was rejected because no taxes were paid or claim made under it for 35 years, and the opposing title had paid taxes for 25 years. There is nothing in that decision which conflicts with the principle of Robb v. Bowen and Sheik v. McIlroy. That principle is therefore reaffirmed.

It is objected to the tax sale that no surplus bond was given; but it appears that one was given on the 7th February, 1833, which was before the expiration of two years. But under the view taken in Ash v. Ashton, 3 W. & Ser. 516, this irregularity, as well as all others, is cured by the statute of limitation.

In conclusion, we are of opinion that the plaintiff in error was barred by omitting to bring his ejectment within five years after the delivery of the treasurer’s deed to the purchaser; and that there are no circumstances in the case which deprive the defendant of the benefit of this statute of limitation.

Judgment affirmed..


source: Caselaw Access Project

author: Woodward, J.

license: Public Domain

text:
    Greenlee versus Greenlee.
    1. To make title to land under a parol contract, there must be clear and explicit proof of the contract and of its terms and conditions—that it was fair and conscionable, executory, and founded in sufficient consideration; and so far executed that it would be a fraud on the vendee or his heirs not to execute it.
    2. Such a contract must be express and not implied from the acts of the parties, and both sides of it must be shown by the party who alleges its existence.
    3. The uncorroborated testimony of a single witness, denied on the part of the adverse party, is not sufficient evidence of a parol contract for the purchase of lands.
    4. Where the evidence at most made out an implied promise to convey the title on terms which were not disclosed, the performance of which therefore was not to be ascertained, it was error to submit the case to the jury.

      5. The possession, necessary to take a parol contract for the purchase of land out of the statute, must he exclusive in the vendee, and must be taken and maintained under and in pursuance of the contract. Therefore a tenant in possession cannot be a purchaser by parol without a formal surrender of his possession under the lease and a resumption of it under the contract of purchase.
    O. An ejectment by the holder of the legal title is to be regarded in the light of a bill in equity, and may be defended against by proof of a contract which might be insufficient to justify a decree of specific performance.
    Error, to the, Common Pleas of Crawford county.

    This was an ejectment by Robert Greenlee against Rebecca Greenlee, for 75 acres of land in Crawford county.
    The plaintiff claimed the legal title under a conveyance from E. Huidekoper in 1849, in pursuance of a contract made in May, 1842.
    The defendant, Rebecca Greenlee, widow of Michael Greenlee, deceased, claimed to retain the possession under an alleged parol ¡Contract made by her husband with his father, the said Robert Greenlee. The defendant had two children, who were minors, for whom the title was claimed.
    The defendant was married in 1847, and in the winter of 1847-8, her ‘husband and herself moved upon the land. He cultivated a portion-of it, built a barn, dug a well, made some fence, put out some-fruit trees, &c., till 1849, when he leased the farm for one year for $45 and the taxes. The lessees continued in possession until the fall of 1850, when Michael, the son, died at his father’s. The taxes, during the time it was occupied by him and his tenants, were paid by Michael—they were assessed in his name. There was no contract for the land proved to have been made between the father and son before the latter took possession. The statement submitted on part of the plaintiff in error, defendant below, was in substance as follows :
    The plaintiff and a man named Oveit contracted for the land with the Huidekopers, in May, 1842. Oveit afterwards transferred his interest to his co-purchaser, who, in 1849, obtained a deed from the owners of the legal title.
    The defendant claimed under an alleged parol sale of the land by the plaintiff to his son Michael, the deceased husband of the defendant—but without any evidence showing when it was made, or the terms thereof, or how the son took possession. Declarations of the plaintiff during the lifetime of the son, and acts and declarations after the decease of the son, were relied upon as evidence of a contract. A few acres of the land had been cleared, and a house erected by Oveit, while he had an interest in it. The defendant proved, by her father, D. A. Conover, her marriage in the fall of 1847, when, or soon after, she and her husband moved on the land; that he occupied and worked it; built a barn, dug a well, improved some, made some fence, set out some fruit trees, and built a hog-pen, remaining until 1849,-when the deceased rented the farm to the witness and another for $45 and the taxes for a year. The lessees continued - in possession till the fall of 1850, when Michael, the son, died at his father’s. The witness stated that, during the' son’s sickness and shortly before his death, he went to have a settlement with him about the rent, when he asked the plaintiff what he had to say about it, who replied that it either was Michael’s or it was his business, and not his; and it was .adjusted between the father and son-in-law. That in September, 1848, the father told the witness that Michael had been a good boy and paid him for the land—that no deed had been yet got out for it; but that he would get one in his (the son’s) name,—that a report had been puf in circulation that he would not do so, but it was false; that it was a good thing Michael had no deed, as he was in the Baldwin Mill Co., and if it broke down, his creditors could not take the land:—That in September, 1850, he was in conversation with Michael’s parents about his support, when the father said the farm would keep him if he could not work—and that a few days before his death the deceased requested the witness to sell his land and settle his accounts, which he promised he would do. (The deceased had fifty acres by contract from the witness.) The witness further stated that, in the month following Michael’s death, he with others, at the widow’s request, called oh the plaintiff to talk about his concerns — that she wanted no will or gifted property, but her husband’s, to administer upon and pay his debts ; that plaintiff replied he owed Michael nothing, but that he owed him. Witness' asked him if Michael had not paid him $80 on the land; he said he had paid him $75, to which the other replied that that would make it real estate. That plaintiff said- he had made a settlement or agreement with Michael before his death-that he would pay his widow $500, which the son thought it would be better to take than keep the land. That witness asked him if he would not take the fifty acres he had sold Michael, and pay what was owing hivi for it, and all the debts, which he thought would be four or five hundred dollars; to which the plaintiff said he would make a proposal, — to pay the widow $500 in ten yearly instalment's, with interest, pay the witness’s demand, about $50, and all the debts of the estate. That the plaintiff’s wife then came into the room and said she was displeased when Michael bought the fifty acres, as he had enough of his own before. That on the same or next day a bond for the $500 was drawn, which the plaintiff declined signing on account of the interest W'hich it called for. A few days after, the'parties again met: and the plaintiff said that, as he supposed the witness had full authority to settle the estate as executor (though there was no will, nor had letters of administration been granted to any one), he would agree to pay the widow $100 in two years, the witness’s claim, with interest, and all the debts. The scrivener asked what consideration he should mention in the writing for the premises, when plaintiff said the claim which Michael had in the Oveit farm,—and two notes were then drawn and signed by the plaintiff—also the agreement of plaintiff with Conover as executor of Michael, by which the former, “in consideration of a claim the said Michael had on the farm,” agreed to pay the widow $100, all the debts, and Conover his claim ; but the $500 bond was not signed. That some time after the plaintiff came to the witness with a citation to have the defendant take out letters of administration, and saying that what they had done would amount to nothing, that it was not done according to law; and that witness replied he would have nothing more to do with it. That in April, 1851, the plaintiff called on the witness and agreed to pay the writings as he gave them; that the latter said they were in Meadville, and that they agreed to go there and bring the matter before the Court. That at different times afterwards witness asked plaintiff if he would settle as he had agreed, when he said not; that the land belonged to him, and that it was a gift or willed property to his son—that witness had no right to it,—that he did not owe Michael anything, and that the widow must go off. The witness testified—under an exception by the plaintiff—in answer to a question by the defendant, how Michael was in possession when he claimed the land,—that Michael said, while on the land, that he was there under his father bv purchase.
    On his cross-examination, the witness made answer to various questions (in which, it was stated that he was more or less contradicted by other witnesses), and said that he knew of no contract between the plaintiff and his son,—that he saw John, another son of the plaintiff’s, working on the barn in framing, and that the plaintiff may have built it.
    A. Shelden testified that he was present at the first conversation between the former witness and plaintiff after the death of Michael, and the effort at a compromise—and said that they talked about the debts and other fifty acres, and that he understood the plaintiff said he would pay the debts and give the widow $500, but it was not said for what—and that all the property Michael had was in the fifty acres bought of Conover.
    Isaac Baldwin testified that Oveit made most of the improvements on the land, that Michael was on it and said he owned it; and that he resided there about a year when he rented it to Conover and Graham. He testified to the conversation between plaintiff and Conover, after Michael’s death, when a settlement was proposed—that he drew the writings—asked what consideration he should put in for the premises to pay—if it should be the claim which Michael had in the Oveit farm—to which the plaintiff replied, yes.
    T. Conover said that two weeks before Michael’s death, she heard the plaintiff say, at his own house, that his, Michael’s farm, would support him if he never did a day’s work. After his death the defendant told plaintiff one day that Michael had told her that he, the plaintiff, would give him a deed for the land; that the plaintiff replied, if he had given him one it would have done her no good, as the creditors would have sold it. She then told him that Michael had said, when he heard that his father had stated that he would take the deed in his own name, that he would leave it at once; to which plaintiff made reply as before: that she heard plaintiff say he should have taken the deed in Michael’s name had it not been for the debts he owed.
    H. Graham testified that he went with Conover to the plaintiff to settle with Michael for the rent; Conover asked plaintiff what he had to say about it, he replied nothing, it was none of his business. That he had often heard Michael say the farm was his.
    Geo. W. Conover testified that he heard Michael say the land was his by purchase from his father, and that he was to pay for it; that he heard plaintiff ask defendant if he paid up the claim whether she would not throw off the $100, to which she replied that she could not, as it belonged to the heirs.
    The defendant gave in evidence the assessment of the land to her husband for the years 1848-9 and 1850, and proved by A. Knapp that in 1850 he was assessor and called on the plaintiff, who did not give in the 75 acres; and he called on Michael, who gave in 125 acres.
    She also proved by other witnesses that Michael said the land was his; that he expected it would be his; and that he had made improvements, as detailed in the first testimony by Conover; and read in evidence, under exception by the plaintiff, the Conneautville Courier, of Jan. 1, 1851, containing a caution by plaintiff to persons against taking the notes he had given to Conover and defendant—and a letter from the counsel of the plaintiff to Conover, advising him to give up the papers, as the settlement between the parties was, in his opinion, without authority; also the second note of plaintiff to Conover and defendant, the draft of the agreement drawn by I. Baldwin, Nov. 22, 1850, the unsigned bond of Nov. 22, 1850, and the citation of Nov. 22, 1850, from the register to the defendant.
    The plaintiff then proved by E. Greenlee, that in 1849 he was selling Michael some cattle on credit, when he asked him if he had a deed for the Oveit lot, and he said that he had not, and that he did not own it. That the day before his dreath. Michael told him that he had requested Conover to settle his estate and sell the land he had bought of him, and that in reply to a question asked him, whether he owned the Oveit lot, he said that he did not, but supposed Rebecca would live on it. The witness also testified to the plaintiff letting Michael have money at different times.
    John Greenlee testified that the barn was built in company, by himself, his father, and Michael; that many of the materials therefor were got' and paid for by the father, and that the work was done for him ; that he hauled a greater share of the rails used in fencing, helped .to split and lay them up, and that the father’s team aided in hauling the stone for the wall; that his father had the management of the farm, and stock on it, and a piece of buckwheat in it the first year Michael moved on; and that Michael attended to foddering the cattle; that Micháél asked his advice about buying Conover’s land, and he told him not to purchase it, as his health was poor and he could not pay for it, to which Michael replied: “ John, you know the other land is not mine, and father may give it to me or not, as he pleases;” and that he wanted a piece he could call his own, and thought he could buy; and that after he did buy, he consulted his father about renting the 75 acres, and apply the rent towards the 50 acres, on which he could keep a dairy; and that his father consented that he might.
    Thomas Tenure testified that Michael told him that he did not claim the land as his own, but supposed his father would give it, or the Doran place, to him one time or another; he said he did not know if he should have the Oveit farm; that his father told him he might go and work it, and have what he could make. Witness said that plaintiff had 10 or 15 head of cattle on the land in May or June, after Michael went on.
    Patrick Tenure testified that the plaintiff’s stock was on the land till the fall after Michael went there, and that the plaintiff and Michael worked there.
    George Head, E. Greenlee, and W. Baldwin testified to the plaintiff’s having his cattle on the land after Michael took possession.
    There was other testimony, not material to be here noticed.
    The plaintiff’s counsel submitted the following points:—
    1. That to make a good contract by parol for the sale and purchase of land, the purchaser must show what the contract was; when it was made, the consideration to be paid, the quantity of land, that exclusive possession was taken under and in pursuance of the contract, and that‘the purchase-money was paid or valuable improvements made to an extent which would render it unjust to turn him out of possession — and all this must be clearly and unequivocally proven.
    2. That there being mo evidence here, such as the law requires, of any contract between the plaintiff and his son, showing when a contract was made, how much was to be given for it, or what was paid, or that he ever went into and took exclusive possession of the land, the plaintiff is entitled to recover.
    3. That if even the plaintiff said to his son, or any one else, after his decease, that he would give or pay $500, more or less, to the widow and children, it would of itself form no evidence of a contract, such as would take the case out of the statute of frauds and perjuries.
    4. That to entitle the defendant to hold the land 'under a resulting trust, it is necessary she should have shown by clear and unequivocal evidence, that it was purchased by the plaintiff with the money of his son.
    5. "That the evidence here is not of such a character as would justify the Orphans’ Court, on a petition .and proof for a specific performance, in decreeing such performance.

      On part of the defendant the following points were submitted:
    1. That possession, assessment, and payment of taxes and payment of purchase-money are evidence of a contract, and if the jury believe from the evidence that Michael Greenlee took and held exclusive possession of the premises in dispute from 1847 until his death in 1850, and paid a consideration for the same, and paid the taxes thereon, and claimed it as his own, and plaintiff knew all the facts and received a consideration for the land, it is sufficient evidence of a parol contract of sale, not within the statute of frauds and perjuries, and plaintiff is not entitled to recover.
    2. That if the jury believe from the evidence that Michael Greenlee went on the premises in dispute in pursuance of an agreement with his father, put on improvements and paid the purchase-money, and in pursuance of a private arrangement between him and his father, the father took a deed in his own name to prevent the creditors of Michael from reaching the. land for Michael’s debts, it would create in the father a resulting trust for the benefit of the widow and heirs and creditors of Michael, and plaintiff is not entitled to recover.
    Galbraith, J., charged, inter alia, as follows:—
    “ It seems that at the time of the alleged sale or agreement, the plaintiff had contracted by article of agreement with the Huidekopers for the purchase of the land in 1842, for $550, and had paid part of the purchase-money. Conover tells you that in 1847 the plaintiff told him that his son, then the husband of the defendant, had been a good boy, that he had.bought the land from him and paid him up—that he (the plaintiff) had not got a deed yet from the office, as he had not himself paid all the money for it, and when he did so, and took out the deed, he would take it in Michael’s name. If the facts were true as stated by plaintiff, if rightly understood and truly testified hy Conover, it would be pretty conclusive evidence of such a contract as would take the case out of the statute, if accompanied by the other requisites. It is in evidence also that he afterwards stated, that it was a good thing that the deed had not been made to Michael because he was engaged in the Baldwin Mill Company, and if it would break down Michael could not sell the land. There was evidence also that plaintiff stated that Michael had paid him part on the land and still owed him more on it. Does this, together with his statements in 1850, in relation to the rent of the farm coming from Conover and Graham, that it was Michael’s business and not his, and the settlement and payment of the rent to Michael under this statement, when applied to by the tenant—his acknowledgment of his agreement with Michael on his death-bed to pay the widow a sum of money, with debts, &c., for Michael’s interest in the land—the negotiations afterwards by way of settlement, satisfy you of the existence of the contract, sale and payment, as alleged by the defendant—was the possession delivered to Michael in pursuance of the contract, if such contract has been shown. It is testified he moved into the old house in the winter of 1847-8; was this in pursuance of the alleged contract? This is a necessary and essential ingredient in the title—for although, as I apprehend, a man might even sell to one in possession as his tenant, yet if the sale was clearly proved, a possession might be delivered anew in pursuance of the contract of sale. Does the evidence in this case clearly satisfy you of such delivery of possession in pursuance of the contract of sale ? If the testimony of Conover and Graham satisfy you that in 1850 the plaintiff recognised Michael as the landlord of the land, as the owner, it is a strong circumstance in proof of his possession being in pursuance of the contract, provided you are satisfied of the existence of such contract, sale, and payment of purchase-money. This possession must also be exclusive; that is, it must be such as to leave no legal right in the vendor to enter on the premises or part of them. Had Michael then such a contract, such an exclusive possession delivered in pursuance of it, and had he the legal control and management of the farm by virtue of such contract and possession ? If he had, the circumstance of the father coming there occasionally or even grazing cattle on the farm, would not destroy such exclusive possession.

      “ In answer to plaintiff’s 1st and 2d points, it is replied that they are correct as general propositions; and also the 3d, with this explanation, that although the agreement to pay $500, or saying he would do so, would be of no importance of itself; it might seem as corroboration of other facts and circumstances given in evidence to make out the defence set up by the defendant.
    “ To the 4th point we do not entirely assent, although generally true. If the plaintiff entered into a contract for the purchase of the land from the Huidekopers, and then received the purchase-money from his son, or any other price agreed upon, under contract with the son to have the deed made in his name, and delivered possession to him in pursuance of the contract, and improvements were made, &c., he would be a trustee for the benefit of Michael and his representatives, and it would constitute such an equity in the defendant’s intestate as to defeat the plaintiff’s recovery, although the original purchase may not have been with Michael’s money.
    “The court declines answering the plaintiff’s 5th point. It is an abstract question hypothetically put, which, even answered in the affirmative, might not be conclusive against the defence in this ease. It is the province of the jury to decide upon the facts on which the defence here rests; and were the defendant here as the representative of Michael with his bill for specific performance in a court of equity, the facts might be so far involved in complication and doubt as to require the reference of them to a jury, and still his equity might be a good and available one. Again: the plaintiff’s writ is regarded in the light of a bill in equity, and what might amount to a sufficient defence to it, might not be sufficient to demand a specific performance on thé other side.”
    Error was assigned, inter alia, as follows:—
    3. The affirmative answers to the defendant’s points were erroneous in point of law, and left the jury to infer from the language of the points, that the evidence and facts of the ease were in accordance with what was stated in them; when such was not the case, there being no evidence of a contract a priori.

    4. The Court erred in leaving it to the jury to find whether a contract existed between the father and son; and in saying “ that if the fact were true as stated by plaintiff, if rightly understood and truly testified to by Conover, it would be pretty conclusive evidence of such contract as would take the case out of the statute, if accompanied by the other requisiteswhen Conover said he knew of no contract, and his own and the evidence of others was of but a corroborative character.
    5. In leaving the jury to find a contract, without such evidence as the law requires to constitute one, and which the court should, in a clear and distinct manner, have pointed out to them.
    6. In charging that “a man might even sell to one in possession as his tenant, yet if the sale was clearly proved a possession might be delivered anew in pursuance of the contract of sale.”
    7. By saying that the exclusive possession “ must be such as to leave no legal right in the vendor to enter on the premises,” without discriminating between a present possession, such as the evidence showed that the plaintiff had and continued for months after the son entered, and a right in the vendor to enter after an exclusive possession by the vendee.
    8. In charging the jury, the Court brought before it all the prominent facts in evidence by the defendant, but wholly omitted those of the plaintiff—this would serve to mislead the jury.
    9. The Court erred, too, in answering the plaintiff’s 1st, 2d, and 3d points; instead of which the jury should have been told that proof of a contract, a priori, defining its character, should have been clearly made, and not be left to find one from evidence none other than corroborative.
    10. In answering the plaintiff’s 4th and 5th points there was also error.

      Derrickson, with whom was Richmond, for plaintiff in error.
    It was contended that there was no evidence of a contract or of any of the essential parts of one—the time, the price, and how and when the purchase-money was to be paid, or of the character of the possession by Michael Greenlee. That oral testimony should define with precision what the contract was, and fix the exclusive possession in the vendee, in pursuance of the contract. That this should be rigidly exacted in cases arising between parent and child, where affection often induces acts having the semblance, but not the essential ingredients of contracts: 7 Barr 104. As to what it was requisite for a vendee to show to take the case out of the statute of frauds, reference was made to 10 Watts 204, Woods v. Farmare; 2 Barr 315, Eshbach v. Zimmerman; 5 Harris 491, Gangwer v. Fry; 5 W. & Ser. 552, Baring v. Pierce; 2 Jones 173, Hugus v. Walker.
    The suggestion by the Court, that a man might sell “ to one in possession as his tenant, yet if the sale was clearly proved, a possession might be delivered anew in pursuance of the contract of sale,” it was contended was at variance with the law as stated in Christy v. Barnhart, 2 Harris 264; Galbraith v. Galbraith, 5 Watts 144; and Brawdy v. Brawdy, 7 Barr 157.
    It was said there was no resulting trust in the case, as when'the plaintiff purchased he was to pay his own money, and the purchase was for himself: 9 W. & Ser. 62, Sample v. Coulson; 4 Id. 149, Jackman v. Ringland; 1 Harris 451, Tritt v. Crotzer.

      Finney, for defendant.
    The essential parts of a parol contract for land, are payment of purchase-money, possession, and the making of valuable improvements. Payment of purchase-money implies a contract, and exclusive possession under such contract establishes an equity, and valuable improvements made corroborate the evidence of the contract, and strengthen the equity. Payment of purchase-money was proved, possession and valuable improvements; and, it was said, the failure to prove the time and the price will not invalidate the claim. Sufficient was proved to create a presumption of a contract, and the facts were for the jury. That such submission was proper in this case, reference was made to 10 Watts 107; 16 Ser. & R. 286; 9 Id. 169. As to the suggestion by the Court, that a man may sell to his tenant, reference was made to Aurand v. Wilt, 9 Barr 55.
   The opinion of the Court was delivered by

Woodward, J.

It is conceded that the legal title to the land in controversy was in the plaintiff, but the defendant claimed that it belonged to her and her children, by virtue of a parol purchase made of the plaintiff by her husband, Michael Greenlee, in his lifetime, and that such equities had accrued from his payment of money, possession taken, and improvements made, as would induce a chancellor to decree specific performance of the contract, notwithstanding the statute of frauds and perjuries. The first thing necessary to such a defence was clear and explicit proof of the contract, of all its terms and conditions; for, before a chancellor would decree specific performance, which is of grace and not of right, he would require to be shown very clearly what the contract was—that it was fair and conscionable, executory, founded in sufficient consideration, and so far executed that it would be a fraud on the vendee or his heirs not to execute it fully. The party seeking specific performance must show affirmatively that he has been in no default, which cannot be explained and excused, and that he has taken all proper steps towards performance on his own part, for mutuality is of the essence of all contracts, and indispensable to move the conscience of a chancellor. A promise to convey is only one side of a contract, and, without the counterpart, is nude. What did the other party agree to do ? Was he to pay money ? How much, and when ? To take possession, and maintain it, and make improvements under the contract ? Then let him allege and prove these things. Let him show hoth sides of. the contract, or else not expect a decree of specific performance.

The plaintiff asserted stoutly, and called on the Court to charge, that no contract had been proved in this case, but the Court, without professing to find evidence satisfactory to themselves, drew the attention of the jury to part of the evidence, and left them to infer a contract of sale.

If parol contracts are to be taken out of the statute of frauds and perjuries, they must be express and not implied contracts. If juries should be permitted to imply contracts of- sale from the transactions which generally characterize dealings between father and son, paternal titles would be swept away in most of the cases where selfishness and avarice had not shut up the fountains of parental affection. But, happily for society, and families, and the better feelings of our nature, the l^w is not so.

In looking through this mass of evidence, the only direct proof of the contract alleged, that I am able to find, is in the testimony of Conover, the father of the defendant, who swears that the plaintiff told him Michael had bought the land, and paid for it, and that the report that he was not going to give Michael a deed, was false. This testimony is denied by the plaintiff point blank. How, were the parties in Chancery, on bill and answer, specific performance could not be decreed on such evidence, for a chancellor invariably refuses, to decree on the uncorroborated testimony of a single witness, in opposition to even the defendant’s interested answer on oath, though it cannot be read in evidence for him at the hearing: 7 Barr 159.

Conover’s testimony is not only without corroboration, hut is contradicted by those declarations of Michael, proved on the part of the plaintiff, which indicated an expectation that the place would ultimately be his, but which are decisive against the idea that he had bought and paid for it. The evidence also of the father’s acts of ownership, such as pasturing and cropping part of the place, whilst Michael lived there, tended, not only to negative a sale,, hut to show that there was no exclusive possession in Michael. And so as to the negotiations between Conover and the plaintiff, after Michael’s death; though they indicated that Michael had an interest in the land, for the extinguishment of which the father was willing to pay his debts, yet, as evidence of a contract of sale, they were worthless. For what was Michael’s interest, and how much was to be paid for it, and how much had been paid, and when, and on what conditions was his father to convey the title ? These are pertinent and obvious questions, which the evidence does not answer, and without full information on these points, there could be no decree. The admission of $75 paid, helps us to no suspicion even of how much remained unpaid. As was said in Soles v. Hickman, 8 Harris 180, a contract is as much void where the consideration, as where the subject, is undefined. We held in that case, on a full revieAY of the authorities, that a written receipt for part of the purchase-money, defining the land sold, but not defining the price or any other terms of sale, did not take the case out of the statute.

Taking into view all the evidence before us, the utmost that can be claimed for it is an implied promise to convey the title on terms that are not disclosed, and therefore it is impossible to say whether they have been- complied Avith or not. It was error to submit such a case to the jury.

These observations dispose of the 3d, 4th, 5th, 8th, and 9th assignments of error.

As the cause must go back, it is proper-we should say we cannot assent to the doctrine of the Court, as contained in the 6th and 7th assignments. All the authorities show that possession, to take a parol contract out of the statute, must he exclusive in the vendee, and must be taken and maintained under, and in pursuance of, the contract: Bassler v. Niesly, 2 Ser. & R. 355; Jones v. Peterman, 3 Ser. & R. 546; Eckert v. Eckert, 3 Pa. Rep. 332; Haslet v. Haslet, 6 Watts 464; Allen’s Estate, 1 W. & Ser. 383; Woods v. Farmere, 10 Watts 204; Frye v. Shepler, 7 Barr 91; Moore v. Small, 7 Barr 461. It results necessarily from these cases that a tenant in possession cannot be a purchaser by parol without a formal surrender of his possession under the lease and a resumption of it under the contract of purchase.

The 10th error relates to the answers given to the 4th and 5th points of the plaintiff. What was said in answer to the 4th point was essentially correct, hut we see no evidence on the record to raise a resulting trust in Michael. The answer to the 5th point was proper enough.

The only two remaining errors, the 1st and 2d, relate to evidence, but no bills appear to have been sealed, and therefore they are not to be noticed.

The judgment is reversed and a venire de novo awarded.


author: Black, C. J.

text:
    Blakeslee versus Blakeslee.
    1. In order to enforce a parol promise for the conveyance of land, exclusive possession by the claimant, in pursuance of the contract, is necessary.
    2. A father promised to convey land to his son on condition of his marriage and residence with him. The marriage took place, and the son resided on the land in conjunction with his father. The father refused to convey a part of the land on account of not having a title from the Commonwealth, but promised to convey it when the patent was obtained; and the deed for the other part was executed and accepted: Held, that as to the part not included in the deed, the son had no better title than he would have had if no conveyance had been éxecuted. The promise by the father that the son should afterwards have a title for the part omitted, being a parol promise, in itself gave no right to the land.
    Error to the Common Pleas of Crawford county.

    The plaintiff in error was the defendant below.
    This was an action of ejectment by Reuben Perry Blakeslee v. Abraham E. Blakeslee, to recover the possession of 47 acres of land.
    Both parties claimed under their father, Reuben Blakeslee, deceased. The father claimed the 47 acres in dispute by settlement, and he also owned otherwise twenty-two acres adjoining it; on the latter was his dwelling-house and other buildings.
    The plaintiff claimed the 47 acres under a parol promise or agreement by his father. The defendant claimed under a conveyanee from his mother, to whom the father, after making the parol promise, had devised it. His will was dated 11th March, 1848, and was proved on 14th October, 1848. He devised the land in question to his wife as above stated, and she, by deed acknowledged on 3d September, 1850, conveyed it to her son Abraham, the defendant. A patent for 288 acres and four perches of land embraced the land in dispute, and was dated 23d March, 1848.
    In relation to the parol promise or agreement under -which the plaintiff claimed, it was testified by Francis Webb, the scrivener who drew the deed for the 22 acres, as follows:
    In March, 1843, Perry called on me to do some business between him and his father. I went to old Mr. Blakeslee’s house. When I got there, old Mr. Blakeslee, Mrs. Blakeslee, and Perry related the arrangement made between them. They said they were about to give Perry a deed of their farm; had always intended doing so, but not so soon; that they had helped the other sons what they intended to, and the balance was intended for Perry. That Perry had been contemplating going to the west, and they did not wish him to go; and they had agreed if he would go and get married, and not go west, they would then give him a deed of their farm. Théy wanted him to marry Lydia Ann Lamonie, and if he would marry and bring her home they would give him the homestead place. Perry agreed he would bring the girl and marry her that evening; they were to live together, and one-half of the avails of the farm were to go to the father, and Perry to carry on the farm; they were to give Perry a deed, and he was to release to them a life estate. If Perry should clear more land, he was to have the product of that. The farming utensils' were to be left on the place for Perry’s use; the old man to own them. The marriage took place that night. I drew a deed that same afternoon; I made a deed of the piece of 22 acres; asked Reuben if he had any survey of the state lot; he said it had never been patented from the state, and on the whole I need not insert it in the deed; that I should wait until Perry came in. Perry came in, and the old man said he did not choose to give a deed until he should get one. Perry seemed displeased about it and requested it to be inserted, and the old man said .it would make no difference, he might take and occupy it the same as though-he had a deed; that arrangements were made or about to be made by which Abraham was to patent it¡ and he might get the deed from him.
    The deed for the 22 acres was executed with that understanding. This was lefore the wedding. The deed was not delivered that day, but I left it for the purpose of making a life lease. A few days after, I made the life lease and delivered the deeds to both parties. The state lot adjoins the 22 acres on the north. Perry worked and put in crops on the state lot that season. I saw Perry chopping and logging afterwards; I don’t know how much he chopped and logged. Reuben Blakeslee died in 1848; the old lady is dead; died two years last March.

      Cross-examined.—(Witness proved the deed drawn by him from, Reuben Blakeslee and, wife to Reuben P. Blakeslee, for 22 acres of land.) The life lease embraced no more than the deed; Perry said he would have the forty-five acres left out of the lease. The old gentleman said he did not care, he would have the buildings and a home,. There was 25 acres of the-state lot improved; there was five or six acres cleared afterwards; have seen Reuben and William Blakeslee working on the clearing; the use of the land would be worth $37½ or $50 per year. I don’t know how many years Perry occupied it; I do not know his age; a little while before the old man died he called me in, and wanted me to write a will for him; I wrote his will.
    In chief.—He said he wanted a life lease to secure himself a home.
    Sanford Bates testified to a conversation with the father, in which he spoke of the arrangement between him and Perry. He said he had given the 22 acres and taken a lease for life; had not given a deed for the other, for he had none; but they were going to get one soon, and then he would give him a deed for that. That Perry was to work the place, and each one was to have half they raised as long as he and his wife lived; each one was to furnish half the seed, &c. He said Perry was to take possession from that time, &c. Perry lived in the house with his father- for several years; after he worked on the state lot I cannot tell what improvement he made; Perry worked there and other hands worked with him; it was- enclosed and heavily timbered.
    It appeared that owing to some disagreement, Perry, some time in 1846, moved off the land to another farm a few miles off and remained a few weeks; when, at the solicitation of his father, he returned with-his family and remained in the house until the death of his father and mother, and resided there at the institution of this suit.
    Bates also testified that Perry did not work the premises in dispute after his father died; that his mother then took possession of it. He further said: I do not know whether Perry occupied all the time or not. I think likely I have seen other sons of Reuben Blakeslee working the land during the father’s lifetime.
    Peter Lamonie said: “I helped Perry clear about four acres and a quarter before Reuben Blakeslee died. He quit it after his father died; he ploughed some; the old lady took possession of the land. Her sons James and William worked the land; Abraham worked the state lot afterward. After the old lady died Abraham forced himself into possession; said -he would come in by force.”

      On part of the defendant it was testified that Abraham, the plaintiff, and his father, had an agreement that Abraham should take out the patent in his name, and convey to the father when he was paid his purchase-money and expenses ; that there was difficulty about the land before the father died; that Abraham said he had nothing to do with Perry, but if his father or mother wanted a deed he was ready to make one on their complying with the contract. The witness said the contract was made between the father and Abraham after Perry’s marriage.

      William Blakeslee testified that he took the place the spring before his father died, and ploughed a part of the land in dispute. The next spring his mother hired another person. He further said that he worked on the place every year for eight years; sometimes his father and sometimes Perry hired him; that his father hired him to help him, and he hired me to help Perry clear on the 46 acres; they shared the product equally. He added, “The year that my father rented to me, Perry claimed a right to the place.”
    Cross-examined.—“ Perry wanted to work the best part of the land my father rented to me. I would not agree to it, and Perry said if he could not work such as he wanted he would not work any; said he worked the place on shares.”
    On part of the plaintiff was proved a tender of §25 by the plaintiff to defendant in 1851, after the death of the mother, and a demand of a deed for the 46 acres.
    Points were submitted on both sides.
    Galbraith, J., charged, inter alia, as follows:—
    The present falls within that class of cases in its principles, as alleged on part of the plaintiff, that when there is an omission, on the promise of the grantor, at the time of execution, it shall be the same as if inserted in the deed. It is a question of fact for the jury to determine whether there is satisfactory proof of the contract, possession taken, and the contract executed by the plaintiff, and this piece of the land left out, on the promise of the father that the trustee should make the deed as soon as he took it out of the land office. “ Was there such a contract, and was the exclusive possession delivered to plaintiff in pursuance of that contract, and had defendant due notice of that arrangement, and did the plaintiff make valuable and permanent improvement on the land, in pursuance of the contract ? If you are satisfied from the evidence of all this, the plaintiff is entitled to your verdict; if the evidence do not satisfy you of these or any material part of these, he is not.”
    “To the defendant’s first point it is answered, that the evidence, if believed, establishes a contract and not a gift, and therefore the reasoning in the point is not adopted and is not correct.

      “ The second point is correct if the evidence establishes a gift and not a contract; if believed, it is a contract.
    “ To the. third point it is answered, that if the testimony is believed, the plaintiff was not a mere cropper, and the reasoning adopted is not correct as applicable to it, and a seizure of it after-wards could not affect the rights of the plaintiff, acquired under an executed contract.
    “To'the fifth point it is answered, that if the testimony is believed, the marriage did- not. constitute the whole consideration ; the farm was taken possession of, labor expended upon it, proceeds of crops to be delivered, &c., and therefore the conclusion would not follow as we are requested to say in the charge to the jury.
    “ To the sixth point it is answered, that in this, as in every other suit, the facts are for the jury; the law for the Court.
    “ The ninth and tenth points are founded upon what is probably a mistake of the scrivener, in drawing the lease to Reuben Blakeslee and wife, for the 22 acres; but still it does not affect the right of the plaintiff to recover, if .the jury believe from the evidence, that possession was delivered in pursuance of the contract (if they are satisfied such has been proved), and improvements made, and notice to the defendant, so far,as the land in controversy is concerned, and therefore the points are decided in the negative.”
    There were various assignments of error to the charge. The material ones were:—1. The Court erred in charging the jury, “That the present falls within the principle, as alleged by the plaintiff, that when there is an omission, on the promise of the grantor at the time of execution, it shall be the same as if inserted in the deed;” and in leaving to the jury to find exclusive possession in the plaintiff, contrary to the terms and stipulations of the alleged contract and all the evidence in the case.
    Also, in the allegation that the ninth and tenth points were founded on what is a probable mistake of the scrivener in drawing the lease from Perry to Reuben Blakeslee; .when there is neither proof nor allegation direct or inferential of any mistake.
    Finney, with whom was Farrelly, for plaintiff in error.
    It was said that the agreement in this case was merely executory; and secondly, that there was no exclusive possession in the plaintiff;that by the terms of the contract the father was to remain in possession, the deed having been given under the express condition that a life estate was to be immediately conveyed to the father; and mother, and the survivor. The father remained on the land till his death, and in 1848 leased to his son William. That the possession must be exclusive, was cited Frye v. Shepler, 7 Barr 91.

      It was said that the plaintiff had not made out a ease on which a chancellor would decree a specific execution. There was no money consideration; no service rendered or to be rendered to the grantor, except what the grantee was to be compensated for by the rents and profits, and no permanent or valuable improvements were put upon it by the plaintiff; that the land was not appreciated by improvements. There was cited 8 Pa. Rep. 364; 6 Watts 509; 3 Watts 253.
    Where a person, endeavoring to enforce a parol contract, fails to give evidence of such facts as are necessary to take the case out of the statute, it is the duty of the Court so to charge the jury: 2 Barr 315; 7 Id. 103; 5 W. & Ser. 548.
    This is not the ease of a mistake or fraudulent omission in a deed; the 46 acres was not inserted in the deed by the express direction of the grantor. Cited 1 Rawle 108; 3 Barr 251; 1 W. &. Ser. 195.

      Derrickson, with whom was Richmond, for defendant in error.
    It was said that the contract was an entirety; and it was contended, that, under the circumstances, the part omitted on account of want of legal title should be considered as included in the deed: 1 Ser. & R. 464, Christ v. Diffenbaugh; 3 Rawle 345, Flagler v. Pleiss; 2 Barr, Tyson v. Passmore; 7 Barr 117, Renshaw v. Gans; 2 Id. 13; 4 Id. 166; 5 Id. 103; 14 Ser. & R. 144; 2 J. & C. Rep. 385, Gillespie v. Moore; 1 Peters 13.
    It was said that the plaintiff’s right to the land originated in contract and not by gift; that he performed what he contracted to perform; that the land in dispute was omitted at the urgency of the father, and that it was fraudulent to attempt to take advantage of this. It was said that the plaintiff held exclusive possession of the 46 acres, until about the time of the father’s death, when difficulties arose and a mixed possession was the result. It was further said that the question of exclusive possession was left by the Court to the jury; and that the marriage of itself was a sufficient consideration for the grant: 1 Baldwin 395 was referred to.
   The opinion of the Court was delivered by

Black, C. J.

These two parties are brothers. Their father was the owner of sixty-eight acres of land in a body. For twenty-two acres including the buildings, he had a perfect title, and for the other forty-six a settlement right. In 1843, he proposed to his son Perry, the plaintiff, that if he would marry and remain at home, and work the land, giving him and his wife during their joint lives one-half the produce and the use of the mansion, he would give him a deed for it in fee, to take effect after the death of the surviving parent. The son agreed, and a scrivener was sent for, who drew a deed in the usual form, without reservation, and also a re-conveyance from the son to the father for a life estate. The father objected to inserting the forty-six acres, because he had no paper title, but promised that Perry should have a conveyance in another way at another time. This was consented to, with some reluctance, and both instruments were executed for the twenty-two acres. Perry married, and remained at. home, and kept the kind of possession agreed on until his father’s death. The father devised the land to the mother, and she conveyed it to another son, Abraham, the defendant below, who occupies it now.

This statement of facts may, in some respects, be slightly inaccurate, but it is as nearly correct as the bad condition of the paper-book on both sides will enable me to make it.

The plaintiff is seeking to recover the forty-six acres without having the slightest written evidence of his title, and therefore in direct opposition to the statute of frauds. Is there anything in the circumstances of the case to take it out of that statute ? Has he proved the payment of purchase-money and exclusive possession taken, in pursuance of the parol agreement? It is not necessary to say whether the evidence proves a contract or a gift. Neither are we called on to say whether the marriage of the plaintiff is such a consideration for the land as would be equal to a payment in money. The judgment cannot be sustained, for a reason that makes all others of no importance. There was no exclusive possession in the vendee. The twenty-two acres included in the written conveyance, and the forty-six now in dispute, were used and occupied as one farm. The vendee farmed the land and lived in the house, but his father lived in the same house, owned the farming implements, and received the half of the crops. The share which the son' got was not more, probably, than the value of his labor. It may be said that the father regularly received all the profits of the land, and had his home upon it. Can it then be said that the plaintiff’s possession was exclusive? The ancient departures from the statute of frauds have been much lamented in modern times. The rule, therefore, which requires the vendee in a parol contract to show everything which equity requires to entitle him to relief from its operation instead of being relaxed, is becoming tightened by degrees. It has now got to be a work of some difficulty to establish a contract in a way which will stand the test to which it is sure to be subjected. But if a sale not witnessed by a writing is hard to support, what ought to be the fate of a demand like the present, which is directly in the face of a deed ? It cannot be said there was no writing here. There was but one bargain between the parties, and that was attested and consummated by an interchange of their solemn deeds. "When the plaintiff claims land not embraced in the deed, he is encountered not only by the statute of frauds, but also by that other rule of law, equally unbending, which makes the deed conclusive evidence of the contract.

It is argued in this case, that the deed does not express the con-< tract, and that a chancellor would reform it or -decree on the evidence as if the forty-six acres were included. This is an error. Parol evidence can only be admitted to vary or change the terms of a written paper in cases of fraud or plain mistake of fact. All the cases cited by the defendant in error go to establish this principle, and they establish nothing more. In Christ v. Diffenbauch, 1 Ser. & R. 464, a party who had been tricked into signing a lease without a covenant in his favor, which had been agreed to, was permitted to prove the truth. Hamilton v. Asslin, 14 Ser. & R. 448, was a case of plain mistake by the scrivener, who inserted what neither party assented to. In Flagler v. Pleiss, 3 Rawle 345, a lot was sold and the purchaser took possession. The vendor falsely and fraudulently described it in the deed as containing less than it did, and made an effort to hold the balance to himself. The grantee recovered what she bought, but the Court said, without fraud and deception the deed would have been conclusive. Tyson v. Passmore, 2 Barr 122, decided that a mistake in law produced by the false representation of a party who afterwards seeks to have the advantage of it, may be relieved against. Clark v. Partridge, 2 Barr 14, was declared by the Court to be a case of palpable fraud. Zentmyer v. Mittower, 5 Barr 403, is very strong authority for the doctrine opposite to that on which this case was decided in the Common Pleas. It decided that parol evidence, unless it amounted to clear proof of a fraudulent representation by one who has an interest in the transaction, is not admissible to vary a deed.

Was there any fraud or falsehood practised on the defendant in error by his father ? Most assuredly the evidence submitted to us does not prove any such thing. Nor is there a fact asserted in the argument from which we could fairly infer that there was the slightest deception. Both parties acted with their eyes open equally wide. Undoubtedly the original contract was that both pieces of land should be conveyed. When the papers were preparing, the father proposed that one piece should be left out of the deed, and he carried his point by saying, what the son knew, as well as he did, to be true, that he had not yet perfected his title from the Commonwealth. Neither was there any mistake , made by the scrivener. He wrote just what he was directed. No deed or other writing was ever reformed upon such evidence. The promise of the father that the son should have a title afterwards, for the forty-' six acres, adds nothing to the force of the previous contract. It was a parol promise, and in itself gave no right to the land.

This then is a plain case. Simply stated, it stands thus: A father agrees, by parol, to give bis son sixty-eight acres of land. He afterwards makes and delivers a deed for twenty acres, a portion only of the sixty-eight. The deed being made without fraud and accepted without mistake, cannot be treated as a conveyance of land which it does not mention. The promise to convey the remaining forty-six acres, whether made at the date of the deed or before, still rests in parol and cannot be enforced, because the statute of frauds forbids it, and because there was no such exclusive possession under it as will enable a Court to decree performance.

We do not say, that there was an absolute merger of the contract in the deed. But, at least, it was no more than a part execution of the previous bargain. The deed for a portion of the land does not take the contract for the balance out of the statute. The vendee has no better title for the forty-six acres than he would have had for it if no conveyance had been made of the twenty-two acres. Since his deed does not cover the land in dispute, he can only fall back on the verbal agreement, and that, as I have already shown, will not support him.

Judgment reversed and ven. fa. de novo ordered.


text:
    Davidson versus Little and Others.
    1. A conveyance of land, free from actual fraud, is not void merely because the price was shockingly inadequate.
    2. Though an unexecuted contract will not be enforced in a Court of Equity, if it seems to be unconscionable, yet after it is executed by the parties it will not be declared void on that ground alone, except in the ease of an heir expectant.
    3. An heir in tail who is entitled to immediate possession of one-half of the land, and to the other half on the death of a tenant by the curtesy, is not an heir expectant.
    4. Gross inadequacy of price is only evidence of fraud.

    5. But even if the conveyance were void for gross inadequacy of price, it cannot he disputed by mere possessors of the land without title, neither the party who conveyed, nor any one claiming under him, nor his creditors disputing it.
    Error, to the Common Pleas of Fayette county.

    This was an action of ejectment instituted in February 1849, in favor of James B. Davidson v. Hope Little, John Bradman, and Aaron Moore, for about 160 acres of land in Luzerne township, Fayette county. Hope Little died before the trial.
    The plaintiff claimed under a conveyance from Aaron Norris.
    On the trial he showed title from the Commonwealth in Thomas Scott, to a tract of land containing 307-J acres and allowance, of which the land in controversy was a part; also a deed by Thomas Scott to Esther Little, for the whole tract during her natural life, with cross remainders in fee tail to Fanny Little and Abraham Little, dated November 21, 1791.
    The death of Abraham Little without issue (his widow and devisee was Hope Little).
    The marriage of Fanny Little, first, to David Norris, by whom she had as her eldest son David Norris, the younger, who died, leaving his eldest son Aaron Norris, with a younger brother and several sisters. Fanny afterwards married John Harper, who yet survived her, and held the moiety of the land as tenant by the curtesy.
    Also deed by Aaron Norris to the plaintiff in fee, to bar the entail ; dated October 21, 1847, for the whole tract. Consideration stated $350. Duly acknowledged and recorded, as directed by the Act of Assembly of 16th January, 1799.
    The defendants did not show any title in themselves, but under a rule of Court there was filed on the 31st of August, 1850, an abstract of title, wherein Hope Little, one of the defendants, claimed the possession of one-third of the land as widow of Abraham Little, who held under a deed from Thomas Scott. She claimed also absolute title and right to the possession of the whole property by deed from Aaron Norris, dated February 14, 1850 (this suit was brought February 13, 1849), which said Norris was alleged to be sole heir to the fee simple of the land, under the aforesaid deed of conveyance from Thomas Scott. Defendants also claimed right of possession as against plaintiff, who it was alleged had neither right of possession nor any other right, but whose title, whatever it may be, was alleged to be fraudulent.”
    On the 7th of June, 1851, after plaintiff had taken several depositions proving the legitimate descent of Aaron Norris, as the heir in tail, the defendants, on leave given, amended their abstract by striking out the words in italics and claiming Aaron Norris to be the sole heir in tail, and that the deed of February 14, 1850, was in fee to bar entail.

    Upon the trial the case was made to turn upon the questions:—1st. Whether the plaintiff’s deed from Aaron Norris was obtained by actual fraud. 2d. Whether the price paid him by the plaintiff for the land, was so grossly inadequate as to make the contract unconscionable and void.
    It was testified on part of the plaintiff, that before Aaron Norris conveyed to Davidson, the plaintiff, he took the advice of counsel as to the title, and was advised that be was sole heir in tail to the premises in dispute; entitled to the Hope Little part at once, and to the Harper part at the death of John Harper, who was tenant by the curtesy.
    It was testified that before conveying to the plaintiff, he had applied to others to purchase, and that he said he was not able to go to law about the property, and was thinking of going to the west; that he valued the property at from $8000 to $10,000. It did not appear that he took any part in the, defence.

    As to the amount paid by the plaintiff, it was proved that he had paid $200 at the date of the deed, and given bond to pay $150 more at some future period, when he recovered the land.
    After the evidence had closed,- the defendants paid into Court for the plaintiff, $252, debt and interest on the amount paid by plaintiff to Aaron Norris.
    The defendants’ counsel requested the Court to instruct the jury:—
    1st. That if they are satisfied that there was fraud by the plaintiff, in taking advantage of the ignorance or weakness of Norris, their verdict must be for the defendants on that ground, without requiring them to refund the plaintiff’s money and interest.
    2d. That the inadequacy of price paid the plaintiff is so gross as to shock a correct mind, and is evidence of that presumptive fraud which vitiates the contract; and upon this ground alone, 'although the jury are not satisfied there was actual fraud, the verdict must be for defendants. But if the jury find on this ground, they must say that defendants shall refund the plaintiff the money he has paid with interest.
    3d. That plaintiff’s contract and deed embracing the whole land, one-half of which being an expectancy in fee tail upon the death of John Harper, the contract is void, unless the plaintiff has shown that he has paid a full and fair price; that plaintiff has not shown this, and therefore cannot recover.
    The answers of Gilmoke, J., were as follows :—

      “ To the first point he charged, that if there was actual fraud practised by plaintiff in procuring the conveyance, then the law is as stated in this point. But actual fraud must be proved, and cannot be presumed. If the jury are satisfied that Aaron Norris either from ignorance or weakness was incapable of comprehending his rights, or the plaintiff in the transaction was guilty of misrepresentation, or withheld facts which he was bound to communicate, this would constitute actual fraud.

      “ To the 2d: We are of opinion that notwithstanding the possession was not delivered, and is now resisted, yet that this is an executed contract, and that therefore, according to all the authorities, mere inadequacy of price is insufficient to set it aside and rescind the contract. But the Court charge that there may be such gross inequality between the price given and the property conveyed, as would amount to presumptive or legal fraud, although the jury might be fully satisfied that there was no actual fraud in the whole transaction. But this inadequacy must be such as would confound and shock the judgment of every man of common sense, and would produce surprise on hearing that such a contract had been made. If you believe that in respect to this case, the land was worth twenty times as much as was given for it, or ten times as much (unless this great inequality was produced by some supposed or anticipated defect of the title, such as a supposed or suspected illegitimacy), then the inequality would create a presumptive fraud which would avoid the conveyance; and the defendants having paid into Court the amount actually paid by plaintiff, with interest, the plaintiff would not be entitled to recover.
    “ To the 3d: In answer to this point we say, that dealings with young heirs for reversionary interests are to be watched with the utmost jealousy, and form another exception to the general rule, that an executed contract cannot be set aside for mere inadequacy of price ; and where this is the case, inequality of price is sufficient to set aside a conveyance. Here, a part of the interest was still reversionary, and the heir was not more than 23 years old, having been born on the 10th of May, 1824, and the deed executed on the 21st of October, 1847. This instruction is likewise subject to the fact whether this inequality was occasioned in consequence of a doubt as to the title, and there could be no other doubt unless it was created by a suspicion as to the legitimacy of the father of Aaron Norris, who was David Norris, jr.; and on this point we have already referred you to the evidence. Osgood v. Franklin, 2 Johns. Ch. R. 25; Evans v. Peacock, 16 Ves. 512.”
    To which charge both plaintiff and defendants excepted.
    January, 1852, verdict was rendered generally for the defendants. .
    The following were the assignments of error:—
    The jury having cleared the case of actual fraud, the answer of the Court to the first point may be assumed to be correct.
    The whole of the answer to the 2d point is erroneous; especially in that the Court, although conceding that this is a case of a contract executed, and therefore not voidable upon mere inadequacy of price; yet says “ that there may be such gross inequality between the price given and the property conveyed, as would amount to presumptive or.legal fraud, although the jury might be fully satisfied that there was no actual fraud in the whole transaction.” And again: “ If you believe that in respect to this case, the land was worth 20 times as much as was given for it, or ten times as much (unless, &c.), then the inequality would create a presumptive fraud, which would avoid the conveyance, &c.
    The Court erred in their answer to the 3d point, in saying that “ dealings with young heirs for reversionary interests form another
      exception to the general rule, that an executed contract cannot be set aside for mere inadequacy; and where this is the case, inequality of price is sufficient to set aside the conveyance.”

      Howell, Flenniken, and Veech, for the plaintiff in error.
    It was said that the case was clear of actual fraud, not only by the testimony adduced at the trial, but by the verdict. That the vendor was of mature age. That it was conceded by the Court that this being a contract executed, was not voidable for mere inadequacy of price; but it was charged that there may be such gross inequality between the price and the property, as will amount to presumptive or legal fraud. It was contended that in this there was error, and there was cited 3 Cowen 532-3, and cases there cited. Reference was also made to 1 Ch. Cases 41, Parker v. Palmer; 2 Vern. 521-3, City of London v. Richmond; 1 Br. Ch. Cases 158; 2 Br. P. C. 415; 1 Cox 428; 8 Ves. 517; 9 Id. 246; 10 Id. 470. These were incases of executory contract. In the case in 9 Ves. 246, Lord Eldon says, unless the inadequacy of price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not itself sufficient ground for refusing a specific performance. Also cited Moth v. Atwood, 5 Ves. 845; 2 Ham. 502; 3 Cowen 591-608; 7 Ves. 35; 6 John. Ch. Hep. 222-232; 3 Ves. & Bea. 187; 8 Ves. 137; 10 Id. 473.
    In 10 Ves. 95 and 108, it is said that inadequacy of consideration, though not of itself a sufficient ground for setting aside a contract, is, when gross, strong evidence of fraud. It is thus only evidence of fraud which may be repelled, ‘as was done in this case. Reference was also made to 13 Ves. 95; 1 Yeates 583; 1 Story’s Eq. 245-6-9.
    As to the charge in answer to the third point, viz. that in dealing with young heirs for their reversionary interests, the conveyance may be set aside for inadequacy of price, it was said that Aaron Norris was not an heir expectant. To a moiety of the land he had a right to immediate possession; to the other moiety upon the death of Harper, the second husband of his grandmother,’from' whom, however, he derived no interest in the' land. It was said that in England the rule was founded in policy, in order to preserve the inheritance for the sole heir; but'here the law divides inheritances among children. That in a number of the English cases there was deception or concealment practised; and that the doctrine there is not so general as charged' by the Court in this case, reference was made to 1 Atkyns 346, 354. Also cited 8 Mass. 111; 8 Pick. 479, 482. It was further said that though the difference between the price agreed on and the value of the property was great, still the circumstances of this case repelled the idea of fraud in the grantee; that the testimony showed the plaintiff’s conduct to be fair; that the vendor was anxious to sell; and the reasons he assigned for selling —that his father’s legitimacy was questioned—great lapse of time had occurred.

      Ewing and Patterson, for defendants in error.
    Fanny Little first married David Norris, by whom she had two children, David and Malinda. On the death of David Norris she married John Harper, who yet survives, and by whom she left six children. David Norris, her eldest son, died, leaving six children, of whom Aaron Norris was the eldest. It was said that Aaron Norris, supposing that he was entitled to hut one-eighth part of the land, procured a power of attorney from his brother and sisters to sell their interest in the land in question, called the Harper tract. It was said -that he sold to the plaintiff his own interest, and by virtue of the power of attorney he sold the interest of his brother and sisters in the whole tract. The consideration was to be $350; for $150 of which a bond was to be given, to be paid when the brother and sisters would convey to him. He paid $200; and the brother and sisters refusing to convey, the bond for $150 was given up, and $200 was thus the amount paid for the land, which was estimated at about $8000. As Aaron Norris was sole heir in tail to the whole 'tract, and so known before the conveyance to the plaintiff, it was said, that it was contended on the trial, in the first place, that there was actual fraud, on the part of the plaintiff, in taking advantage of the weakness or ignorance of Aaron Norris, and that therefore he could not recover. In the second place, it was contended that if the jury were not satisfied that there was actual fraud, the inadequacy of price was so gross as to be such evidence of presumptive fraud as to vitiate the sale; particularly as the agreement was made with a young heir, and in relation to land, half of which was in expectancy.
    It was contended that the charge in answer, to the second point, “ that gross inadequacy of price, such as would shock the judgment of every man of common sense, is presumptive evidence of fraud,” was correct, and reference was made to the following authorities, decided from 1682 till 1778, viz.: Nott v. Hill, 2 Cases in Chan. 120; 1 Vern. 167; Id. 237; 2 Id. 14; Id. 27; Id. 121; 2 Freeman 111; 1 P. Wms. 239; Id. 310; 2 Ves. sen. 125; Id. 281; 1 Atk. 301; 1 Wills 320; 1 Bro. C. R. 1; to the following, decided since 1804, viz.: 10 Ves. 209, affirmed in 14 Ves. 28; 6 Ves. 266; 3 Ves. & B. 119; 1 Atk. 351; 16 Id. 517; also, 2 Kent 477; 4 De Saussure 651; 2 Binney 129-135; 8 Watts 374-8; 8 Ser. & R. 294; 3 Cowen 516-526.
    As to the answer to the third point, as to contracts with young or expectant heirs, reference was made to 1 Bro. C. R. 1; 17 Ves.
      20; 16 Ves. 514; 2 Johns. Ch. 25; 12 Ves. 371-2. It was said, though mere inadequacy is not sufficient to set aside an executed contract, yet that where the inadequacy of price was so gross as to shock the conscience, the contract should be rescinded.
   The opinion of the Court was delivered by

Black, C. J.

One Aaron Norris inherited the land in dispute, which was worth about eight thousand dollars, and sold it when he was twenty-three years of age, to Davidson, for three hundred and fifty dollars. At the time of the sale, another person had a life estate in part of the land. There also appears to have been some doubt about a material fact on which the title of Norris rested.

The judge who tried the cause instructed the jury, 1. That the conveyance was void if the price paid by thewendee was shockingly inadequate, though the transaction should be found free from all actual fraud; and, 2. That inequality between the price and the value of land sold is alone sufficient to set aside a contract made with a young heir, whose interest is reversionary.

An unexecuted contract will not be enforced in a court of equity, if it seems to be unconscionable. But after it has been once executed by the parties themselves, a chancellor will not- interfere by declaring it void for that reason alone. There are many cases, therefore, of contracts for the sale of lands, in which the vendee would have no chance of a decree for specific performance, but in which the vendor puts himself beyond the reach of relief by making the legal conveyance.

A party who complains that he has been wronged, and brings a bill on such grounds, must make out a clear case before he can expect a decree to cancel his own deed. If, however, he repents before the execution of the contract and stands upon the defensive, he may have all the advantage of his adversary’s weakness as well as his own strength. But whether the vendor comes into court as defendant or as plaintiff, before the conveyance or afterwards, a gross inadequacy of price is some evidence of fraud; and, if fraud is satisfactorily proved, it makes a deed void as readily as articles of agreement. An unexecuted contract has been often annulled, or the vendee left to his action at law, when there was no proof of foul practice, except inequality between the price agreed on and the thing sold. But inadequacy alone must be rejected as insufficient to justify the cancellation of a conveyance, except in the ease of an heir expectant, who anticipates his inheritance by selling it before he gets it.

In the case at bar, the judge put the case to the jury on the naked fact, that the consideration of the conveyance was so grossly inadequate as to shock the judgment and producé surprise; and charged that if this should be found, it would of itself amount to presumptive or legal fraud, although there was no actual fraud in the transaction. We are all of opinion that this was a mistake. Inadequacy Of price is not fraud. A man may be as honest in making a profitable bargain as a bad one; and the law does not require him to pay a full price, if the person he deals with is willing to take less. The owner of property may sell it for very little, or give it away for nothing, if he thinks fit; and however unreasonable his conduct may seem, his will alone is sufficient to avouch the act—“ Stat pro ratione voluntas.”

Such gross inadequacy as there was in this case is very well calculated to fix upon the transaction a serious suspicion of its fairness. It is contrary to all our usual experience that a man should part with his property at five per cent, of its value, unless he was excessively weak or ignorant, or under the influence of some deception. But if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was twenty-one years of age, and of sound mind; if there were no circumstances which gave the vendee an improper control over him, amounting to mental imprisonment; if, in short, the vendee behaved honestly, and the vendor was able to act like a.free man, with his eyes open, then the one had a right to sell, and the other to buy, on any terms they saw-proper to agree upon. The law will never interfere, between the parties themselves, to set aside an honest contract which they have voluntarily made. When creditors complain, the case is totally different. The sale of lands or goods by an indebted person for less than their value is ipso facto a fraud in both vendor and vendee.

The Court should have charged the jury that, if there was no actual fraud committed by the vendee, the conveyance could not be disturbed; that the inadequacy of the price, gross as it was, could be regarded only as evidence of fraud; that this being the case of an executed contract, the inadequacy is not sufficient to prove the fraud without some additional evidence; that all the facts connected with the transaction must be considered together; and if by this means it should appear to be honest, the verdict ought to be for the vendee.

This case does.mot seem to be within the rule which sets aside an executed contract with an heir, for mere inadequacy of price. Norris was not an heir expectant. The estate was fully vested in him. The fact that another had a life estate in one-half of it, makes no difference, or at most is a very slight circumstance.

If the Court had been right in the general rules laid down, those rules would not have applied to a case like this. Not only are there no creditors complaining of this sale as an injury to them, but, for aught that appears, Norris himself is perfectly satisfied with it. There is no evidence on record that he ever objected to it, or authorized anybody else to do so. The defendants are in possession without any title at all, and when Norris’s vendee brought ejectment to turn them out, they had no right to set up, as their defence, the fact that Norris conveyed it without sufficient consideration. 'No matter how fraudulent that conveyance may have been, the cheated party alone, or some one claiming under him, can take advantage of its invalidity.

Judgment reversed and venire facias de novo awarded.