L. Waldo Herritt, Jersey Shore, for appellant.
Lewis G. Steinberg, Lugg & Snowiss, Lock Haven, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., did not participate in the consideration or decision of this case.
This is an appeal from a final decree in equity granting the appellees, William T. Charles and Maxine B. Charles, specific performance of an agreement for the sale of a tract of land in Pine Creek Township, Clinton County.
On April 9, 1971, the appellees filed a complaint in equity seeking judicial enforcement of a contract for the purchase of land owned by the appellant, B. Hazel Henry. Attached to the complaint was a copy of a written agreement dated April 14, 1969, and signed by one George Henry, brother to the appellant, purporting to be her lawful agent. This written agreement contemplated the sale of approximately one hundred acres of land belonging to the appellant, with the purchase price being $24,000. The appellant's answer to the complaint denied the agency, stating that George Henry was never "granted the authority . . . to convey title to the premises . . . ." or "had authority to enter into an agreement pertaining to the sale of the premises." Proof of such authority was demanded.
The chancellor, while recognizing there was no proof of a writing authorizing George Henry to act on behalf of the appellant, nevertheless ruled the defense of the Statute of Frauds had not been properly set forth in the pleadings and, hence, was unavailable to the appellant.
He further found the appellees had sustained the burden of establishing George Henry's authority to bind the appellant and, accordingly, ordered the appellant to specifically perform the agreement. Exceptions to the decree of the chancellor were filed and dismissed by the court en banc which directed that the decree nisi be entered as a final decree.
The Statute of Frauds clearly requires that an agent's authority to make or create an uncertain interest in land be manifested in writing. Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1;*fn1 Fiegelman v. Parmoff Corp., 435 Pa. 461, 464, 257 A.2d 575 (1969). See also Feingold v. Davis, 444 Pa. 339, 344, 282 A.2d 291 (1971); Lehner v. Montgomery, 180 Pa. Super. 493, 498, 119 A.2d 626 (1956). However, the failure to properly plead the Statute of Frauds at the time and in the manner required renders the defense unavailable at the time of trial. Martin v. Wilson, 371 Pa. 529, 533, 92 A.2d 193 (1952); Pa.R.C.P. 1032, 12 P.S. Appendix.*fn2 This is such a case.
Pa.R.C.P. 1030 provides that all affirmative defenses, including the Statute of Frauds, "shall be pleaded in a responsive pleading under the heading 'New Matter'." In Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1968), we ruled the Statute of Frauds relating to sales of interests in real estate ...