above quoted, and also (13) "The charge of the Court, as a whole, tended to mislead the jury and prejudice the defendant's case. Instead of determining as a chancellor whether the evidence was sufficient to support the plaintiff's claim for specific execution of the verbal contract, and then submitting it to the jury to say whether the testimony was true or not, he magnified the importance of loose and unreliable and immaterial testimony, and so blended it with the question of the genuineness of the receipt as to confuse the jury in the determination of its validity." A. G. Green and George F. Baer, for the plaintiff in error. Cyrus G. Derr (Daniel E. Schroeder with him), for the defendant in error. In support of the alleged parol contract the plaintiff's evidence, aside from the receipt of March 13, 1866, to which we will presently refer, consists of a note of March 13, 1866, for $2250.00 found among the papers of Joseph Henry after his death, of a mortgage for $5000, given by Miller to Clymer covering the property in controversy, together with proof that the money to satisfy it was paid by Henry, and of declarations of Miller and acts and declarations of Henry including the fact that he went into possesion of the house in the spring of 1866, and remained in possession till his death, and made some repairs thereon. There was, however, no evidence showing the terms of any contract of sale; and the character of Henry's possession, whether as tenant under Miller, or as purchaser was a question about which there was much conflicting testimony. Both the alleged payments were in like manner denied and the money with which the Clymer mortgage was paid, was asserted to have been furnished by Miller. It also appeared that in 1871 Miller brought an action of ejectment against the widow and son of Henry who were then in possession of the house and who declined to pay rent. That case came on for trial in 1873, and the defendants put in evidence substantially the same facts and circumstances in support of the same alleged parol contract by way of defence to the action of Miller, as we have seen, were put in evidence by the plaintiff in this action in support of his title. The learned Judge of the Common Pleas, the late WARREN J. WOODWARD, afterwards a member of this Court, held that the evidence was insufficient to establish the parol contract set up, and directed a verdict in favor of Miller. Upon this verdict judgment was entered, a writ of habere facias issued, and Miller put in possession by the sheriff. This action was brought by Moss in 1880. The evidence upon the trial differed from that before the Court in 1873, chiefly in the fact that the plaintiff produced and put in evidence the receipt of 13th March, 1866. It is as follows:$2250. READING, Pa., March 13, 1866. Received of Joseph Henry $2250 as payment full for house No. 228 North Sixth Street. DAVID MILLER." April 23, 1888. THE COURT. This is an equitable ejectment in which the plaintiff's title rests upon an alleged parol contract for the purchase of a house and lot in the city of Reading. The important question raised by the assignments of error is whether the proof of the contract and of the part performance of its terms, is sufficient to take the case out from under the operation of the Statute of Frauds. The plaintiff is in effect seeking a decree of specific execution, and the burden is on him to show, first, a contract complete in its terms; and next, such partial performance by the parties including a taking of possession in pursuance of the contract as to make it unjust and inequitable to rescind it. This must be shown by evidence that is clear, unequivocal, and convincing, so as to satisfy fully the conscience of a chancellor; for to be in doubt about the existence or the sufficiency of the contract is to be resolved against its execution. These general principles are well settled and have been often asserted by this Court. Some of the many cases in which they are stated and discussed are McKowen v. McDonald (43 Pa. 441); Hart v. Carroll (85 Id. 510); Bowers v. Bowers (95 Id. 477); Lord's Appeal (105 Id. 460). The trouble in this class of cases is not in ascertaining the rules of law that are applicable but in making an application of them to particular cases. In the case at bar both parties claim under Daniel Miller now deceased. Moss alleges that his grand-in father Joseph Henry, bought the house and lot in the spring of 1866, by verbal agreement under which he took possession and paid the purchasemoney. He then shows the death of Joseph Henry in 1870, leaving a son and daughter; the death of the son intestate and without issue, and the death of the daughter of whom he is the only child. He is therefore the only living discendant of Joseph Henry, and claims title as heir-at-law. The defendant denies the existence of the alleged contract, and shows a deed duly recorded made to him by Daniel Miller, for the house and lot. 66 This receipt bears the same date with the note found among the papers of Henry after his death, and is for the same amount; and the theory set up by the plaintiff is that the note was accepted as cash by Miller in settlement for the balance due upon the purchase-money, that the receipt was given to show that the transaction was closed, and that it affords a sufficient memorandum in writing of the terms of the contract and the payment of the purchase-money to take it out from under the operation of the Statute of Frauds. Our question now is, whether this receipt which was attacked at every point, furnished the clear, unequivocal, and convincing proof of the existence and terms of the parol contract on which the plaintiff's title depends that should move the conscience of a chancellor and induce a decree For Without this receipt there was no sort of proof These papers taken together made a most of the contract. It was not produced on the effectual answer to the receipt found in the old trial of the action of ejectment in which the trunk. If they were genuine, the plaintiff's widow and son of Henry were defendants in receipt could not be; and on the other hand, if 1873, and its genuineness is very earnestly the receipt was an honest paper, the entire set of attacked. It is important, therefore, to examine papers produced by the defendant were forgeries. the testimony relating to it in order to determine to what extent a chancellor should be moved by it. Moss, the plaintiff, testifies that he found it in an old trunk belonging to his grandmother, Mrs. Henry, at the Widows' Home in Reading a few weeks before she died in 1883 or 1884. He describes the circumstance thus, "I did not look for specific performance. Without the receipt after the paper until she called my attention that the plaintiff is without a case. With it, if its there was some papers, and was silk dresses of my genuineness was satisfactorily established, he mother's and the family, and small scraps and might be entitled to relief. But the balance of papers, and old books, German books and the the evidence is against its genuineness, largely, like that were in there. She said she thought if not overwhelmingly so. The very best that she was getting old and feeble and that I had can be said is that the character of the receipt is better look through, and as I looked through I involved in painful uncertainty. Instead of the found these papers." He further says that the feeling of confident belief which is necessary to old trunk was very nearly full of scraps of silks move a chancellor, the evidence leaves room only and cambrics and linens and old books, and that for perplexing doubt or positive distrust. they were all lying loose in the trunk. The this reason alone, specific execution ought not to paper is dated 13th March, 1866, and this dis- be decreed. In addition to this, the verdict covery was made by Moss, as he says in 1883 or against this contract, rendered in 1873, was con1884, some eighteen years afterwards. It was clusive as to the one-half of the title of Joseph found in the trunk of the widow of Henry who Henry, which descended to his son Benneville. had a verdict rendered against her and her son That verdict may not be conclusive upon the in 1873, for want of just such proof of the terms title of Mrs. Moss, the other child of Joseph of the contract. Four witnesses testified to their Henry, who was not a party to that action, but belief that the signature of Miller to the receipt upon substantially the same facts, it is strongly was in his own handwriting, and it was admitted persuasive. But it is unnecessary to lay stress in evidence. The defendant called a large number upon this persuasive value of that verdict, for of witnesses who testified that the signature was there was no such proof of the existence and not Miller's, and several experts who expressed terms of the contract as to move a chancellor to the opinion that the paper at the time of trial decree specific performance. This action being was not more than five or ten years old, that it a substitute for a bill in equity, it is the duty of was written in ink not in use at the date of the a Judge to withdraw the evidence from the jury, paper, and that the appearance of age in the if sitting as a chancellor he would regard it as color of the paper was due to the use of chemi- insufficient to justify a decree. The second, cals. In addition to this direct attack upon the third, and thirteenth assignments of error are receipt the defendant produced and gave in evi-sustained. Here we might with propriety disdence for the purpose of contradicting the statement contained in it the following papers, viz: An unsigned memorandum in the handwriting of Daniel Miller containing this statement :"Note, March 10, 1866, Miller to Henry, "Due bill, March 10, 1866, Miller to Henry, $1262 75 miss this case, but for the circumstance that the learned Judge of the Court below seems to have treated this action as indistinguishable from the ordinary action at law in the relative functions and powers of the Judge and the jury, and to have regared the verdict as conclusive of the question submitted to the jury. But in Penn987 25 sylvania, an action of ejectment on an equitable title to land is in effect a bill for specific performance, and therefore governed by the general principles of equity. (Deitzler v. Mishler et al., 37 Pa. 83; Remington v. Irwin, 14 Id. 143.) A decree of specific execution will therefore depend on the justice and equity of the case presented (Remington v. Irwin, supra); and a recovery will not be permitted, unless "equity and good conscience entitled a party to the intervention of a chancellor." This doctrine is clearly $2250 00" Also the note and due bill referred to in the memorandum signed by Miller, and a receipt purporting to be signed by Joseph Henry, in the following form :— "Received of Daniel Miller, his note, at 60 days, for $1262.75, and his due bill, for $987.25, in consideration for my note, dated March 13, 1866, for $2250.00. JOSEPH HENRY." stated by THOMPSON, C. J., in Piersol v. Neill What is this but the trial of a feigned issue out (63 Pa. 420), who states that it is "as truly the of chancery. If the evidence is too vague, un rule in an equitable ejectment as it is in a bill in certain, or doubtful to establish the equity set up chancery." To the same effect are Peebles v. even if believed, it is the duty of the Judge to Reading (8 S. & R. 484); Tyson v. Passmore (2 withdraw it from the jury." Equally clear is the Pa. 122); Greenlee v. Greenlee (22 Id. 225). language of WOODWARD, J., in Moore v. Small, In a proceeding by bill, if a chancellor sends which was an action of ejectment in which an an issue to a jury, he is not bound by the verdict. alleged parol contract passed under judicial It is in ease of his conscience merely, and if the scrutiny. In discussing the duties of a Judge verdict does not satisfy his conscience he may and the manner in which they are sometimes set it aside as often as he pleases or make his abandoned by a submission of the whole case to a decree in utter disregard of it. (Brightly's Eq.jury he says, "The Judge blots himself out and Jurisp. Par. 758 and 759.) That substantially surrenders his functions to the jury, who, more the same rule prevails in equitable ejectment was affected by the supposed hardship of the case very distinctly stated by GIBSON, C. J., in than by the policy of the statute, blot out, in Brawdy v. Brawdy (7 Barr, 157). "In eject- their turn that venerable and valuable rule of ment," said the Chief Justice, "as upon a bill in property. But how is this to be prevented? In equity whatever would affect the conscience of a no otherwise than by the action of the Judge as a chancellor is to be taken into consideration." chancellor which he truly is." Again when speaking of the duty of the chancellor and his complete independence of the action of a jury, he says: "But even when a chancellor sends such an issue to a jury, it is only as an advisory council and in ease of his conscience; for he may direct any number of new trials or decide at once in opposition to the verdict." The doctrine that the enforcement of a contract by a decree for specific performance is of grace and not of right is applicable to equitable ejectment as truly as to a proceeding by a bill. This was so held in Piersol v. Neill, supra. THOMPSON, C. J., who delivered the opinion in that case uses this language, "Every element that would induce a chancellor to withhold his hand in a Court of Chancery, will control and move a Judge in administering the equities between the parties in an equitable ejectment." Dungan v. Blocher (24 Pa. 28) was an equitable ejectment. In reversing the judgment of the Court below entered upon a verdict this Court said, "The error of the Court below consisted in committing such a case to the speculations of the jury;" and in discussing the duty of a Judge in this form of action the Court further said, "A chancellor calls a jury to his aid only when the material facts are in doubt and conflict, and then only to inform his conscience." In Church v. Ruland (64 Pa. 432), the action was ejectment upon an equitable title, and the distinction to be taken between that form of action and an ordinary action at law is A verdict in an equitable ejectment has no very plainly brought out by SHARS WOOD, J., in such power. The conscience of the chancellor the opinion of the Court. He says, "the Judge in must be satisfied by the evidence, and if it is not reality is the chancellor with the assistance of a so satisfied, a verdict if rendered cannot bind jury. It is not like other ordinary trials at law him. He may set it aside as often as his sense where any evidence reasonably tending to prove of justice may require it. If at the conclusion of a fact must be submitted to be passed upon by the case the evidence taken as a whole is of such that tribunal. The conscience of a Judge as a a character as to make a verdict a mere guess by chancellor must be satisfied; and what goes to the the jury, he may, and should decline to submit jury is to determine the credibility of witnesses it. If the fair balance of the evidence is against and to weigh or decide upon conflicting evidence. the contract set up so that sitting as a chancellor From this review of the cases it is quite clear that in an equitable ejectment the Judge sits as a chancellor; that it is his duty to "view and weigh facts for himself," and to withdraw the evidence from the jury when it is not such as ought in equity and good conscience to induce a decree of specific execution. Whether the doubt arises from the insufficiency of the facts alleged if found by the jury, or the insufficiency of the evidence to justify a finding in favor of the alleged contract, is of no consequence. It is the existence of the doubt, however arising, that stays the hand of the chancellor. Unless upon the whole evidence the conscience is moved, the decree should be withheld. That this should be so, seems as evident upon principle as it is upon authority. The plaintiff and all persons similarly situated have an election between two remedies. They may seek the specific execution of the contract which they set up by bill or by an action of ejectment. Either remedy brings them before the same Judge, upon the same contract, and with the same evidence. It would be an inconsistency, not to be tolerated, if the conscience of the chancellor could be bound by the verdict of a jury in an action of ejectment, rendered upon evidence, which if presented to him in a proceeding by bill he would turn away from as too uncertain, too much in doubt, to use no stronger terms, to justify a decree. Jan. '88, 185. Deed March 26, 1888. Coxe's Appeal. Construction of-Contract-Evidence- he would refuse a decree, he should withdraw the case from the jury. His duty is to do that which in right and equity ought to be done. Every prayer for relief is an appeal to his conscience upon the equities, the intrinsic merits of the case presented. If the plaintiff's equities are not clear, if his hands are not clean, if the relief he asks is not conscionable under all the circum-one-fourth of the income of a certain estate, the reA. took a conveyance from B. of her life interest in stances, he has no standing before a chancellor, maining interests wherein he controlled, for a nominal no matter what may be the route by which the consideration which was the value of her life interest, case reaches him. In an ordinary action at on the supposition that one-fourth of the estate was law the facts are for the jury. Where a verdict worth $12,500. By a collateral agreement A. agreed has been rendered, the question is not whether that if, when the estate was settled up, the value of the Judge would have found the facts in the $12,500, the consideration should be increased or dithe fourth part should amount to more or less than same way from the same evidence, but whether minished proportionally. It was conceded that the there was evidence before the jury, which if intent of the parties was that A. should pay to B. au credited by them would support their verdict. annuity. The estate was settled up, and the oneThey are the judges of the credibility of the, wards, through unfortunate investments, certain of the fourth interest found to be in excess of $12,500. Afterwitnesses, and they may believe when a Judge estate was lost: would reject the testimony of a witness. But in an issue out of chancery and in an equitable ejectment the question is, Does the verdict seem to the chancellor to be a fair and conscionable conclusion from the testimony? Does it satisfy his conscience? If not, the responsibility is still on him notwithstanding the verdict. In this case we have shown by a glance at the evidence that the plaintiff's contract passed under the examination of the Court of Common Pleas in 1873, and was properly rejected, there being no proof of its terms. The alleged receipt found ten years later, besides the remarkable story of its discovery, was discredited by the clear balance of the testimony on the question of its having been executed by Miller by the testimony of the experts in regard to the ink with which it was written, and the use of chemicals to produce an appearance of age. The papers having the same date explanatory of the transaction to which the receipt relates, which were produced by the defendants, were absolutely overwhelming, unless shown to be fraudulent. Upon the whole case a chancellor could not hesitate for one moment as to his duty to refuse a decree. Why should he blot himself out, that the jury might in turn blot out the Statute of Frauds and Perjuries when it was his duty to apply it? The evidence did not justify the verdict, and it should not have been submitted to the jury. Judgment reversed. Opinion by WILLIAMS, J. C. K. Z. Held, in view of all the evidence as to the contemporaneous and subsequent acts of the parties, that A. was not a mere agent or bailee for B., holding the estate at her risk, but an absolute purchaser thereof under a binding agreement to pay to her an annuity guaged upon what one-fourth of the estate on settlement thereof was found to be worth, and that the subsequent loss of part of the estate did not relieve him or his executors from liability to continue the payment of said annuity so fixed. A., having died, appointed his wife, C., executrix. Certain securities were, on the audit of her account, Appeal of Anna R. Coxe from a decree of the The petition of Maria L. Fleming set forth that she was a creditor of the estate of S. Richards Colwell, deceased, under an agreement made by said Colwell, in his lifetime, to pay her $1254.98 per annum, in equal half-yearly instalments on the first days of January and July in each year, during her natural life, which was paid up to the time of his death; that he died in the year 1873, leaving a will duly proved, etc., wherein he gave his residuary estate to his wife Anna M. Colwell, and appointed E. M. Fulton, Charles R. Colwell and said Anna M. Colwell executors, all of whom accepted the trust and received letters testamentary; that they continued the payments of said yearly sum until July, 1884, when they made default and there was due when the petition was presented (April, 1885) instalments due July 1, 1884, and January 1, 1885. The petition then stated the recent discovery of an account settled in this Court by "Charles R. Colwell, Acting Executor," showing a payment with Mrs. Fleming as follows: That if, on the to petitioner of her annuity, and taking credit for settlement of the accounts of John S. Irick and $34,000 of bonds of the Camden and Atlantic disposition of the said estate in his hands, the net R. R. Co. (appraised at $30,000), retained to one-fourth part of said estate shall amount to provide for two annuities, one of which was that more or less than the said sum of $12,500 with of petitioner, the distribution account annexed interest thereon from the day and date of said inthereto showing payment of all the estate to denture, at the rate of six per cent. per annum, Anna R. Colwell, as residuary legatee, except that then the said consideration of $8571 shall said bonds and the final confirmation of the be increased or diminished by me, my heirs, exaccount; also, that Mrs. Colwell afterwards re-ecutors or administrators, in the ratio of such exceived the bonds and intermarried with one cess or diminution over said sum of $12,500. Robert D. Coxe. "It is argued by the petitioner that this cove The prayer was for a decree directing the exe-nant and the other circumstances of the case, all cutors of testator to pay the arrears of petitioner's taken together, show an absolute sale to Mr. Colannuity, and to enter security for a continuance well and the assumption on his part of a personal of the payment thereof or in lieu thereof to pro- obligation, enforceable like any other debt, duce said bonds and deposit the same in the against his estate in this Court, and that he was hands of a trustee to secure the payment of said to pay interest at the rate of six per cent. per annuity. annum on the entire value of one-fourth of Mr. Richards's estate during petitioner's life. On the other hand, it is contended on behalf of Mrs. Coxe, that while he was in form a purchaser, the conveyance was only intended to enable Mr. Colwell and his wife to get the estate out of the hands of Mr. Irick; and that Mr. Colwell was really only the agent, or bailee, of Mrs. Fleming, who remained the real owner of her life interest, and entitled to receive the income derived from it, and no more. It is contended that the principal has been lost; that there consequently has been no income, and that, even if there were, as there was only a trusteeship created by act inter vivos, the remedy is exclusively in the Court of Common Pleas. Answers were filed, and the case referred to Samuel W. Reeves, Esq., as Examiner and Master, who reported in substance as follows: "This controversy grew out of a conveyance by petitioner, Maria L. Fleming, to testator of all her interest in the estate of William H. Richards, deceased. Said Richards by his will gave one-fourth of the income of his estate to his wife for life, one-fourth of the income thereof to his sister, the petitioner, for life, and subject to these interests, gave his entire estate to his daughter Anna M. Richards, who intermarried with S. Richards Colwell, and after his death married Robert D. Coxe, Esq., and is the principal respondent. One John S. Irick was the trustee under the deed and the executor of the will. Mr. Irick's administration proving unsatisfactory, Mr. and Mrs. Colwell determined to get rid of him, and to this end purchased the outstanding life interests of Mrs. Richards, the widow of William H. Richards, and of Mrs. Fleming, and the deed above mentioned is her conveyance of her interest. The consideration named was $8571. With respect to Mrs. Richards it is conceded that the consideration of the conveyance was an annuity. The questions in controversy depend primarily on the consideration for Mrs. Fleming's deed. At this "If the deed and covenant stood alone, the Examiner might perhaps be of opinion that there was a personal obligation imposed on the testator, but that it was for a round sum to be ascertained on the final settlement of the estate of William H. Richards by taking the sum of one-fourth of the estate and the interest thereon, and finding from it an amount which bears the same proportion to it that $8571 bears to $12,500. point it is proper to explain that Mrs. Fleming was then, as she is now, a resident of Belgium; that the testator was her agent in this country, "Bearing even date with the deed is the cove- having in charge a considerable amount of pronant of S. R. Colwell. This recites the deed, perty belonging to her, and was in constant corand that the consideration of $8571 therein respondence with her, and that there was a conmentioned was and is estimated upon the as-siderable number of letters passing between them sumed basis that the net one-fourth of the estate in the hands of the said John S. Irick, as aforesaid, will amount to the sum of $12,500, and interest thereon at the rate of six per cent. per annum from the day of the date of said indenture, which on the settlement of the accounts of said John S. Irick, and disposition of the estate in his hands, may amount to more or less than said sum of $12,500; whereupon the testator covenants relating to this sale. The matter was first mentioned in a letter of testator's to Mrs. Fleming dated June 22, 1869, in which he proposed either to pay her the annual value of her interest, in the shape of an annuity, or to pay down the present valuation of a life interest. Six days later, apparently without awaiting a reply, he sent her the deed for her signature, with the covenant ready executed by him in case she desired to |