Myers v. Black

1. Where the evidence of part execution of a parol contract for the sale of land is not sufficient, the court should so instruct the jury. 2. The Act of 24th February, 1834, relating to executors and administrators, invested the Orphans’ Court with full authority to make and enforce a decree of specific performance of a parol contract for the sale of land, made by a vendor, who afterwards died; and the Act of 21st March, 1806, providing, that where a remedy is enjoined by an Act of Assembly, the directions of the act shall be strictly pursued, it was held, that the exclusive remedy of the vendee in such a case is in the.Orphans’ Court, and that an ejectment cannot be sustained.

Err.or from tbe Common Pleas of Montgomery county. This was an ejectment by Charlotte Black against the executors of Jacob Myers, deceased, to recover a piece of land fifty feet in width, adjoining the land of the plaintiff. And the title set up was a parol agreement, by the testator, to permit her to occupy it, during his life, at $3 per annum, and to have a conveyance of it at his death, on payment of $50. On the 18th June, 1846, one Reuben Myers entered into articles with C. Black, to sell her a piece of land for $1000, under a forfeit of $100, by either party refusing to comply. This land adjoined the lot now in question, and was conveyed to her pursuant to the contract, by deed dated April 1, 1847. The agreement, on which this suit is founded, was stated by a witness to be thus:—In January, 1847, Reuben Myers called on C. Black to make a payment on the articles. She said she would rather pay the forfeit than take the land, without additional ground adjoining. That Reuben acquiesced in the propriety of her wishes, and promised to see his father, Jacob Myers (the testator). On the next evening, Jacob Myers agreed to let her have “ about fifty feet” adjoining, on the terms that she should pay $3 per annum, during his life, and $50 as the price of it at his death, when Reuben would make her a deed. It was conceded that no written agreement was executed; and whether the case was taken out of the statute was the main question. The truth of this alleged contract was, however, denied. At the time of the contract between Reuben and the plaintiff, his property was occupied by his tenant, Josiah Ileartley. It was separated from the land in dispute by a fence. In this fence was a gate, which opened on to the disputed ground, which was part of a meadow. The meadow was pastured by the occupants of the testator’s farm. While Ileartley occupied Reuben’s property, he used to go through this gate and dry his clothes in the meadow, and get water from the mill-race on the side of the meadow. He .had also, by the consent of Reuben (not the testator), put a pigpen and chicken-coop there, and a small erection a few feet from the fence. But it was allegéd that his occupancy was wholly indefinite, and by no defined lines or boundaries. After plaintiff purchased from Reuben, Heartley continued to occupy the property as her tenant; but when he attorned did not appear. Nor was there any evidence that he attorned for the land in dispute; and it was disputed whether he paid rent for it, or was directed to do so by the owner; it had been used by him, in the manner spoken of, by permission of Reuben Myers. He also continued to use the meadow as formerly. In July, 1847, Heartley quitted possession of the adjoining house and lot, and McMullin entered as plaintiff’s tenant, and used ■the meadow as it had been used by Reuben Myers’s tenants. His testimony, on this point, was, “ I suppose I rented the whole property.” He was the only witness to prove the parol agreement. Whether he had a lease of the premises in question was disputed. Two or three months after his entry, the defendant’s testator chained up the gate; McMullin opened it, and again used the land, and was again excluded by Jacob Myers, who had a wall erected without a gate in it. Jacob Myers died in January, 1849. Within three months after his death, the plaintiff tendered $50 to the executors, but it was rejected, and no conveyance was made. A large lot, including the property in dispute, was devised by Jacob Myers to Reuben Myers, at a valuation. Reuben did not take it, and the land was sold at public auction, by the executors, under the power in the will, and a conveyance was made after this suit was brought. A reference was had under an agreement between Jacob Myers and the plaintiff, which on one side, it was contended, was conclusive : on the other side, it was contended that it was not. Krause, J., charged, inter alia, as follows:;—“The plaintiff claims to recover a. patch of ground, which seems to be described in the writ, on a parol contract. The first question is, has she proved such contract as entitles her to a specific execution, if nothing else in the case prevents her ? Eor this the jury must look to the testimony and determine the facts. It would seem that, in 1846, she agreed with Reuben Myers for a certain property, in writing, dated 18th of June of that year, in which she was to pay, on failure to comply, a certain sum as forfeit-money. Reuben called on her for the purchase-money some time in 1847, when she told him she needed more ground adjoining, to which he assented; and as his father Jacob Myers had willed that ground to him in an instrument then executed, though Jacob was still alive, he would see him about it, and let her know in a day or two. After that Jacob said she should have such ground, being this in dispute, and Reuben should make her a deed for it after his decease ; she then to pay $50 as the price; and, in the mean time, she to ha,ve possession and pay $3 per year, as interest. Witness says, that Jacob told her to take possession and use the property as her own by paying the $3 per year, and that Reuben pointed out its extent on the spot or ground; and that soon after she took a deed from Reuben, and built on the property contained in it; and that after this arrangement was made between her, Reuben, and Jacob, the matter of the forfeit was dropped, and she took the property. Then there is evidence that after Jacob’s death she tendered to Reuben, as one of his executors, the $50, which was refused, and that afterwards, and after this suit was brought, the executors sold the patch in dispute to another. She has also paid what she says is $50 into court, to be taken by defendants if the verdict should be in her favor. There is also evidence that said arrangement was made in January or February, 1847, and Heartley says he had rented the house of Reuben in 1843, and used the ground in question until 1847, as his tenant, when he rented from plaintiff and used it as before; a few months after which he left, and McMullin moved in, and still continues. McMullin says he rented from her the patch in dispute, it having been occupied by Heartley before, who left it about July 1847 ; that he used the patch for certain purposes a short time, when Jacob shut the gate; that he after-wards used it again, when he was again shut out; since which he has not used it at all. There is evidence that Jacob built a high wall to keep her or her tenants out; that in 1848, she sent for Altemus, among other things, to cut off her piazza, and make up the fence. He cut off eighteen inches of the corner towards these fifty feet, and set up the fence along stakes pointed out by her and Jacob Myers; that there was no gate put in the fence, and the parties appeared satisfied. This was 24th August of that year. The stone fence has been put up since, and no gate in it. There is also evidence of a submission and award between her and Jacob, one dated 15th December, 1847, and the other 21st February, 1848.” He referred to the jury the question whether the contract alleged on the part of plaintiff, was proved, and if so, whether there was such part performance before suit brought as entitled her to a specific execution of it; as to what constituted part performance, reference was made to the case of Pugh v. Good, 3 W. & Ser. 56; that possession must be taken in pursuance of the contract. Yerdict was rendered for the plaintiff. The 13th section of the Act of 21st March, 1806, provides, “ In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said Acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such Act or Acts into effect.”