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182 Pa. 591

Derr v. Ackerman

Supreme Court of Pennsylvania

Decided October 11, 1897

Supreme Court of Pennsylvania · decided 1897-10-11

<p>Appeal, No. 439, Jan. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., May T., 1895, No. Ill, on verdict for defendants.</p> <p>Transcript of proceedings before a justice of the peace to recover tbe possession of real estate bought by the plaintiff at sheriff’s sale. Before Livingston, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[But, in this case, tire owners of the fee, or three of them (for there are six here, as I understand it), claim to own this life estate of this defendant here. They allege that, at the time of the entry of this judgment and the issuing of the writ upon which this life estate was sold by the sheriff, and prior thereto, they were the owners of this life estate, having purchased it from their father, Simon Ackerman. They allege, and have produced testimony for the purpose of showing you they had so purchased it. They produce evidence to show that Simon Ackerman became indebted to one George Zimmerman in a sum exceeding, or about $1,250, as we remember the testimony; that he proposed and agreed with Ella D., John and Irwin Ackerman, three of his children, the defendants here, if they would pay Mr. Zimmerman the money he was indebted to Zimmerman, that in consideration of their so doing he would transfer to them his life estate in the real estate, of which they were the owners in fee; that they accepted the proposition he made, and that he transferred orally (that is by word of mouth) to the three defendants here, his life estate, in consideration of their assuming and paying the debt of Simon Ackerman to Mr. Zimmerman. They did assume the debt, gave their obligation to Zimmerman for it, and Mr. Zimmerman gave up to Mr. Ackerman the note and obligations of indebtedness which he held against him for the amount Ackerman owed him, and relieved him, Simon Ackerman, from the payment of it. Simon Ackerman then gave possession of this property to defendants, and they have since been in possession of it, and he has lived with them, had his home with them. He says he paid the taxes, the boys giving him the money for that purpose. The defendants also say so. And if that be true, that would be sufficient,] [7]</p> <p>[If you find and believe, from the whole evidence, that Simon Ackerman was indebted to Zimmerman, as he says he was, and Zimmerman says he was, in the sum — the amount I do not remember, at least $1,200 (there seems to be no doubt he was so indebted), and Simon Ackerman in good faith agreed and contracted to give these three defendants his life estate in this land, of which they were and are the owners in fee, if they would assume and pay the debt, and relieve him of its payment, and they in good faith accepted his offer and did assume to pay Zimmerman, and Zimmerman agreed to take tlieir obligation for the payment of the debt owing him by Simon Ackerman, and they gave their obligation to him for the amount, which he accepted, and he released and discharged Ackerman from its payment, and gave up to him the note, obligation or evidence of debt he had against him, and Ackerman gave them, these three defendants, absolute possession of the premises, which they took and have retained in good faith, that would be sufficient to constitute a sale, and they would be entitled to your verdict.</p> <p>If you believe this was not done; that the whole thing was' done for the purpose of covering up the life interest (as the plaintiff claims here) of Ackerman in this estate and cheating Derr, that it was a fraud, then your verdict should be, of course, for the plaintiff.] [8]</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned among others were (7, 8) above instructions, quoting them.</p>

Relies on Hart v. Carroll · Ackerman v. Fisher · Gangwer v. Fry

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1897-10-11

How this case has been cited

Cited by 7 later decisions — most recently December 1987

7 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Opinion by

Mr. Justice McCollum,

¶2In 1892 Simon Ackerman resided upon and had an estate by the curtesy in the land in question. He was then indebted to *595Catherine Derr in the sum of $1,400 for which judgment was entered against him on the 25th of April, 1892. On this judgment his estate in the land was sold to John H. Derr, who, having received from the sheriff a deed of it, instituted proceedings to obtain possession. The defendants, claiming that there was a parol sale of the estate to them prior to the entry of the Derr judgment, were allowed to intervene for the protection of their interests in it. On the trial the defendants presented their evidence of a parol sale and of what they had done in pursuance of it. The court submitted the evidence to the jury with instructions to the effect that if they credited it they should find for the defendants. The verdict was in their favor, and from the judgment entered upon it this appeal was taken by the plaintiff, whose contention is that the evidence was insufficient to clothe the defendants with a legal or equitable title to the life estate.

¶3The witnesses to establish the sale were Simon Ackerman, his' son Irwin, and his daughter Ella. They testified that the former, sometime between January 1, and April 1, 1892, offered to transfer his estate in the land to his children if they would assume and pay his indebtedness to Zimmerman for money expended in improving it, and that on or about the first of the last mentioned month they accepted his offer. The offer and the acceptance were verbal and constituted the agreement of the parties. Nothing appears to have been done in pursuance of it until October of the same year when Zimmerman received the note of the children for their father’s indebtedness, and re-' lieved him from further liability on account of it. This was the first notice or knowledge that Zimmerman had of the arrangement between Ackerman and his children. In the meantime he had issued an execution on a judgment against Ackerman for the same indebtedness ; sold his personal property, including crops on the farm, for $880, and become the purchaser of it. Neither the defendant in the execution nor his children made any objection to the sale. This property however was surrendered to the children by Zimmerman on receiving their note as above stated. The taxes on the land in 1892 and 1898 were assessed to and paid by Simon Ackerman, and when it was sold in 1894 on the Derr judgment he filed an exception to the sale of it on the ground that the life estate had been set apart to him *596under the exemption act of April 9,1849. There is not a scintilla of evidence in the case showing a change of possession or control of the property in pursuance of the alleged parol sale previous to October, 1892, nor subsequent to that time, unless the evidence that Irwin Ackerman bought some lumber and shingles in 1893 or 1894, which were used in the construction or repair of a washhouse, can be considered as such. It is not claimed that the children were to receive anything as a consideration for their assumption of their father’s indebtedness except a transfer of his life estate in the land, and yet they received property which sold at sheriff’s sale for $880, as part, if not the entire, consideration of it.

¶4Is the evidence referred to sufficient to take the parol contract out of the operation of the statute of frauds? We think it is not. “ The provisions of the statute are beneficial, and should not be further encroached upon: ” Gangwer v. Fry, 17 Pa. 491. “ Though the giving of a negotiable security be equivalent to actual payment in order to found an action for money paid or received, it is not so to found an equity: ” Parker v. Wells, 6 Wharton, 153. “ It is the notoriety of a change of possession in execution of the parol contract that, more than anything else, takes a case out of the statute of frauds: ” Ackerman v. Fisher et al., 57 Pa. 457. “ In order to take a parol contract for the sale of land out of the operation of the statute of frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. Also it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust: ” Hart v. Carroll, 85 Pa. 508. “ In parol contracts between father and child, clearer and stronger evidence is required of the father’s intention to part with his property than in cases of strangers in blood. The evidence of the contract must be direct, positive, express and unambiguous. The payment of the price must be proved positively. Every presump*597tion is against the claim under such sale. There must be proof that the vendee took possession in pursuance of the contract. If before, his possession was worthless as evidence of an executed sale: ” Ackerman v. Fisher, supra.

¶5We have referred to the parol sale, as a sale by Simon Ackerman of his life estate in the land to his children, meaning thereby his sons John and Irwin and his daughter Ella. Neither his son George, nor either of his sons, Alvin or David, had anything to do with the alleged sale, or claimed anything under it. The note to Zimmerman was signed by Ella, John and Irwin, but John was not called as a witness to establish the contract. The quotations from the eases above cited sufficiently show what is essential to create an equity in the vendees which will take a case founded upon a parol sale out of the operation of the statute of frauds. As we have already seen, the evidence in this case is not sufficient to establish such an equity. It does not show a change in pursuance of the contract, in the possession or management of the farm, or performance or part performance of it by the vendees which cannot be compensated in damages, and it is by no means clear that there was any consideration for the note given by the defendants to Zimmerman, except the surrender by him to them of the property he bought at sheriff’s sale on an execution issued upon Ms judgment against their father. Upon the evidence in the case the court should have instructed the jury to find for the plaintiff.

¶6Judgment reversed and venire facias de novo awarded.

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