Bailey v. Bowman

6 Watts & Serg. 118

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1843
• Status: Published

Opinion

The opinion of the Court was delivered by

Gibson, C. J.

The argument rests on an assumption, unfounded in fact, that the decision in Kerper v. Hoch was but the dictum of the Judge who delivered the opinion of the court. The truth is, it was the unanimous and deliberate judgment of the Judges present, (Mr Justice Rogers being absent), after a very full argument ; and it received the acquiescence of the only Judge who sat in Bruch v. Lantz, in order to avoid a division, and to establish a rule which should be firm and stable for the future. This rule has been recognised in at least one case, not yet reported; and it is to be taken for the fixed construction of the statute. The most that can be said against it, is, that it is inconsistent with what was taken for granted in Bruch v. Lantz, which was decided upon what was supposed to be the current opinion of the profession. That the principle of that case was received without examination, is plain from the printed report of it, in which there is no inquiry into the foundation of the supposed distinction between purchasers and volunteers. Perhaps it would have been as well, for the sake of consistency, to have abided by it. Yet there would be little difficulty, if the matter were res integra, in pronouncing the construction, ultimately adopted, to be the true one. In the course of a very few years, it is not only possible, but common, for one who has derived an estate from the bounty or demise of an ancestor, to become, in an equitable sense, a purchaser of it; and it would be strange if the courts should feel themselves restrained by common law analogies, intended to be dispensed with in cases within the letter, from extending the provisions of a remedial statute to cases in the very same mischief. That the donee becomes a purchaser by the consequential expenditure of money or labour, is the foundation on which a parol gift of land to a child is sometimes made effectual against the letter of the statute of frauds. In regard to that the application of the statute is governed by the special circumstances of the case; and hence many critical distinctions and much litigation. It was thought better, in the end, to avoid these by establishing one rule for all. Beside, as regards the possessor of the estate, that is a disabling statute, while this is an enabling one, whose policy is evidently to encourage the possessor to treat the estate as his ow.n; and it ought, therefore, to be more beneficially construed.

Judgment affirmed.