Leland's Appeal

The Orphan's Court has not jurisdiction to decree specific performance of a parol contract, made by husband and wife, of the estate of the wife, where a deed was executed by husband and wife, and acknowledged, but not delivered, in the life time of the wife, and where no possession was taken of the premises by the party contracting, during the life of the wife, and where no money was paid during her life time.

In the matter of the estate of Sylvia Leland, deceased; appeal from the Orphan’s Court of Delaware county. This was an appeal from the decree of the orphan’s court of Delaware county, refusing to order a performance of a parol contract, entered into by husband and wife, for the sale of the property of the wife. It came before the orphan’s court on a petition of John Leland, administrator of the estate of Sylvia Leland, deceased, which stated that Sylvia Leland was in her life time, seized of a tract of land, conveyed to her by Haydock Garrigues, with the consent of her husband, John Leland, the petitioner; the property being known as the Buck Tavern, for the consideration of $5300. That the said Sylvia Leland and her husband, in October, 1846, by a parol bargain or contract, bound themselves to sell and convey the said property to one Jacob Keyser. That afterwards, viz: on the same day of the making of the parol contract, an agreement under seal was executed by Jacob Keyser and John Leland, the husband, by which John Leland agreed to sell to Keyser the same property. That afterwards, in December, of the same year, the said Sylvia being indisposed, her husband and herself executed a deed for the premises, to Jacob Keyser, aforesaid, and acknowledged it in form, but she died intestate, before the deed was delivered. That Keyser afterwards paid the petitioner a part of the purchase money, and that petitioner delivered to him the deed, executed by the said Sylvia and himself, and that the said Keyser, thereupon, went into possession of the same, and still holds possession. That the contract is and was, at the death of the said Sylvia, so far executed, that it would be against equity to rescind the same. The court was prayed to decree specific performance of the contract. The court below delivered the following opinion: In the matter of the estate of .Sylvia Leland, deceased, upon the face of the petition it is admitted that what is called and attempted to be enforced as the deed of Sylvia Leland, a married woman, never was delivered by her: such delivery we think essential to its validity. We are unwilling to lessen or remove any of the safeguards by which the real estate of married women is now protected. No statute has been shown, by which the relief prayed for is directed to be given by the orphan’s court. We refuse, therefore, to make any order to that effect; but, on the contrary, adjudge and decree that the said petition be dismissed, and so says the court. The errors assigned were: 1. The court erred in dismissing the petition of John Leland, administrator. 2. The court below erred in refusing to decree the specific performance of the contract.