
    [Pittsburg,
    September 12, 1826.]
    CLARKE and another against VANKIRK.
    IN ERROR.
    In ejectment, the defendant may give in evidence the declarations and acts of the plain» tiff, tending to prove that he had made a parol sale of his interest in the land in dispute, accompanied by payment of the purchase money and delivery of the possession.
    The record of this case having been returned on a writ of error to the Court of Common Pleas of Mlegheny county, accompanied by three bills of exceptions to the rejection of evidence offered by the defendants below, the plaintiffs in error, it appeared that the action in the court below was an ejectment, brought by John Van-hirh against Thomas Clarke and Robert Graham, to recover half of a tract of land in Elizabeth township, containing one hundred and thirty-two acres, or thereabouts.
    The plaintiff gave in evidence an article of agreement, dated the 25th of October, 1811, by which the executors of William Sampson, contracted to sell the land in question to William Van-Mrk and John Vankirk for eleven hundred dollars, — two hundred dollars payable in Jipril, 1812, and the remainder in yearly in-stalments of one hundred and fifty dollars each. And he proved the payment of the instalments in 1812, 1813, 1814, and.1815, by John and William Vankirk, jointly.
    The defendants, who claimed as purchasers of the land at sheriff’s sale, as the property of William Vankirk, on the 4th of Jhtgust, 1821, admitted themselves to be in possession, but alleged that John had parted with his interest in the land in question, to William in the year 1816; that he had then removed from the premises, and delivered the. entire possession of them to William, who had paid him for his interest in them. This matter formed the subject of three bills of exceptions: — one to the rejection of the deposition of Joseph Vankirk; the second to the rejection of the testimony of Fauntly Muse; and the third, which embraced the first two, to the rejection of evidence generally,, offered by the defendants to prove a parol sale by John to William Vankirk. The offer of evidence by the defendants was in these words: — “The defendants offer to prove, that, in the year 1816, John Vankirk, the plaintiff, left the land in question with bis family, and did not return to it until 1822, during which time William Vankirk occupied the same, and held the sole and exclusive possession thereof: That about the time of John leaving it, in 1S16, he stated to a number of persons now attending as witnesses, that he had sold his share of the said land to his brother William: That he shortly after became possessed of William’s share (the one half,) of a keel boat, which he said he had received from William in part payment of the land: That from 1816, until a considerable time after the sale of the land at the suit of the commissioners, in Jlugust, 1822, John repeatedly declared, that he had sold his share of the land to his brother William, and that all, or nearly all, the consideration money had been paid: That during all'the time William claimed the land as his own, and paid from time to time to the executors of Sampson, the residue of the purchase money'due to them, on the said articles of agreement, and that after 1816, John neither paid nor offered to pay any more to the said executors.” The offer contained other matters, relating, among other things, to John’s conduct at the time the land Was offered for sale, which were admitted by the court.
    
      Pentland and Forward, for' the plaintiffs in error,
    cited, Jones V. Peterman, 1 Serg. & Eawle, 544.
    
      Fetterman and Biddle, contra,
    cited, Richardson’s Lessee v. Campbell, 1 Dali. 10. Jackson v. Vosburg, 7 Johns. 186. Jackson’s Lessee v. Casey, 16 Johns. 302. 2 Eq. Jib. 46. 4 Dali. 152. Phillips v. Thompson, 1 Johns. Ch. R. 149. Syler v. Eckhart, 1 Binn. 380. Bassler v. Niesly, 2 Serg. & Rawle, 357.
   The opinion of the court was delivered by

Huston, J.

Few legislative enactments have been the subject of more discussion in courts of justice, than the statute to prevent frauds and perjuries; the literal construction of which would avoid all agreements respecting lands, for any title which is to last longer than three years. - A construction was, however, early adopted, and has been uniformly sanctioned by all courts since the date of the law, which I believe to be the true construction,, and which I suppose no court in this state is now at liberty to depart from, because, in many cases, any other construction would work the grossest injustice; because solemn decisions, made repeatedly and during a long period, become rules of property, and ought for the sake of certainty to be adhered to, as if they had been originally part of the text of the statute. And because, in this state, our legislature have very directly sanctioned the construction given by the court, on the act in question, and have extended the effects of that construction in a very important particular, and in very plain language, by the act of the 19th of March, 1818, Purd. Dig. 125. This act empowers the court, in a summary way, to enable executors or administrators to carry into effect parol contracts for the conveyance of land, where such contracts shall, in the opinion of the court, have been so far in part executed as to render it unjust .to rescind the same. And, in another part of the act, it directs the court to proceed on the petition, if it shall be of opinion that the case therein disclosed doth not come within the meaning of the act for the prevention of frauds and perjuries, &c. In this state, then, an uniform series of decisions, sanctioned by such a legislative recognition, has perhaps put it beyond the power of a court, which should be disposed so to do, to return to the strict letter of the act. There will arise cases, in which a court may doubt whether the land should be held or not; but, in such cases, all the evidence must be heard and carefully weighed. Whether delivery of possession alone, or payment of money alone will take a case out of the statute, is a question which it is not necessary to decide in this cause, for the defendants offered to prove both. I will only say, that if on a parol sale possession is delivered of property of little value, and that possession is held for a long time, until by gradual improvement and much labour it is rendered valuable, it is possible it might, and that it ought to be considered a valid transfer, on the consideration being paid, even at a distant period. It is also possible, that payment of money alone, without taking possession, may make a strong case, as, where unseated lands are agreed to be sold, and the purchaser proceeds for years, paying annually the instalments, paying taxes, &c. I give no positive opinion on these points. What is just, where it would be unjust to rescind the contract, must depend on what is proved in each case.

In this case, the court is of opinion the evidence ought to have gone to the jury: if proved as stated, it would have made a very strong case. In the argument, much was said of the danger of relying on confessions or declarations of the party, to prove a parol sale. A single declaration to a single person is not the most satisfactory evidence in all cases; but still it is evidence, and must be heard. Repeated declarations to the same effect, made at different times to different persons, during a long period, are among the most satisfactory of proofs. How far the witnesses will support the whole of the points, or how far they will be believed by the jury, are other matters. If all is proved, and all believed, the plaintiff has no right, or only a right to what balance may clearly appear to be due him from William. And if the testimony contained in the other part of the defendants’ offer, satisfies the jury that John was present at different times when the sheriff offered the property for sale, and never hinted at any claim of his own until after the deed was made, and money paid, he has no colour of right to any thing. -

Judgment reversed, and a venire facias de novo awarded.  