Price v. Hart

NaptoN, Judge,

delivered the opinion of the court.

There are difficulties in allowing Mrs. Collins’ conversation with the plaintiff in 1854 to set up the deed, executed in 1853, as a sufficient memorandum in wilting within the statute of frauds. That deed, not having been acknowledged according to law, had no validity as a deed against Mrs. Collins, and, as a contract, could not bind her, as she was at the time of its execution feme covert. Although a nullity in the law, it had however a physical existence ; and as it contained a distinct account of the sale of the land, a minute description of the land itself and a specification of the terms of sale, it might very well have been adopted, or ratified, by a subsequent agreement, if that subsequent agreement was in the form required by the law. In such case it is obvious that the binding force of the contract is in the subsequent agreement and not in the deed, and the agreement must therefore be in writing. If the deed can be adopted or set up by a mere parol declaration, made by Mrs. Collins after the removal of her disability of coverture, it would seem to let in all the evils which the statute was designed to guard against.

The case does not, however, in our opinion, turn upon this point; for, conceding that there was no memorandum in writing, there is still ample proof to authorize a decree for specific performance of the agreement.

After the death of Collins, and after the mistake in the acknowledgment of the deed was discovered, the proof is un-contradicted that Mrs. Collins expressed her entire satisfaction that the sale should stand, and promised to execute another deed so soon as proper steps could be taken to secure the purchase money to her children. Mrs. Collins died *173 shortly after this conversation. The purchase money has been all paid to her administrator; and the plaintiff, who took possession of the land in 1853 immediately upon the execution of the deed, has been in possession ever since and made .improvements on the place.

The circuit codrt seems to have dismissed the bill upon the ground that the possession of the plaintiffs was anterior to the contract sought to be enforced, and that the improvements made were not of such a character or of such value as of themselves to warrant a decree for .specific performance.

It is well established that the delivery of possession of a tract of land, to form the groundwork of a decree for title, where the contract is wholly parol, must be in pursuance of the alleged contract. The principle itself is self-evident, but its application has been chiefly illustrated in two classes of cases. The first is where the party is in possession as tenant and attempts to set up a new lease or an absolute purchase. Here the relation of landlord and tenant exists at the time of the alleged contract, and the circumstance of the tenant’s continuing in possession amounts to nothing. So where the relation between the parties is that of father and son, the possession of the latter admits of a similar explanation, and by no means necessarily leads to an inference that the land has been given or sold to the son. (Eckert v. Eckert, 3 Penn. 332 .) But where the parties are strangers, as in the case now under consideration, the case is different. As was said by the Master of the Eolls, in Morphell v. Jones, 1 Swanst. 181, “ the admission into possession having unequivocal reference to contract has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorize an inquiry into the terms.” • ^

It is impossible to distinguish the contract consummateáT by the supposed conveyance in 1853 and the parol agrgir *174 ment of Mrs. Collins in 1854, so far as a delivery of possession under the contract is concerned. The latter parol agreement may be considered as relating back in time to the former, or as amounting to a second delivery of possession at the date of the second agreement. To all intents and purposes, so far as the question of possession or the time of its being taken is concerned, they are one and the same. The facts, as stated in the finding of the court, or as more fully detailed in the bill of exceptions, show, beyond all doubt, that the possession of the plaintiff' was under and by virtue of the contract of sale now sought to be enforced.

Judge Ewing concurring, the judgment is reversed and the cause remanded. Judge Scott absent.