Emmel v. Hayes

• Decision Date: 30 June 1890
• Parties: Emmel et al. v. Hayes et al., Appellants
• Court: Missouri Supreme Court

14 S.W. 209

102 Mo. 186

Emmel et al. v. Hayes et al., Appellants

Supreme Court of Missouri

June 30, 1890

Appeal from Greene Circuit Court. -- Hon. Jas. R. Vaughn, Judge.

Affirmed.

F. S Heffernan and C. W. Thrasher for appellants.

(1) The court erred in not admitting evidence as to improvements made by defendant O'Callahan on the land sued for while in possession of the same, and after his settlement with Simmons, and payment by him of the purchase price to Simmons. See cases hereafter cited on the application of the statute of frauds to the parol contract between Simmons and Headlee. (2) There was sufficient performance of the parol contract on the part of appellant, Thomas O'Callahan, to take the case out of the statute of frauds. Simmons v Headlee, 94 Mo. 482; Bean v. Valle, 2 Mo. 102; Farrar v. Patton, 20 Mo. 81; Charpiot v Sigerson, 25 Mo. 63; Tatum v. Brooker, 51 Mo. 148; Adair v. Adair, 78 Mo. 630; Wetmore v. White, 2 Caine's Cases, 109; Ryan v. Dox, 34 N.Y. 307; Throckmorton v. Davidson, 68 Iowa 643. If the vendee is in possession of the premises at the time of the sale, and so continues thereafter with consent of the vendor, that is part performance of the contract. Fisher v. Moolick, 13 Wis. 321; Snider v. Thrall, 56 Wis. 674; Brown v. Jones, 46 Barb. 400; Pains v. Coombs, 1 DeG. & J. 34; Gregory v. Mighell, 18 Ves. 328. Where a parol agreement for sale of land is silent as to the possession, the land vacant, the entire consideration paid, and the agreement fully performed on the part of the vendee, leaving nothing for the vendor to do but to give a deed, there is an implied agreement that the vendee may at once take and hold possession. Miller v. Ball, 64 N.Y. 286; Waterman on Spec. Perf., sec. 270. The entire performance of this parol contract on the part of the appellant takes it out of operation of the statute of frauds. Randall v. Turner, 17 Ohio St. 262; Towsley v. Moore, 30 Ohio St. 184, 193; Lefferson v. Dallas, 20 Ohio St. 68; McClure v. Otrich, 118 Ill. 320; Walker v. Shackelford, 49 Ark. 503; Webb v. Toms, 86 Mo. 591; Winters v. Cherry, 78 Mo. 344; Wood v. Fleet, 36 N.Y. 511. (3) Respondent Emmel, claiming title to the land sued for, solely by quitclaim deed from P. T. Simmons, is affected by the equities existing between said Simmons and O'Callahan, and, therefore, stands no better than the other respondents. Morrow v. Best, 62 Mo. 491; Austin v. Loring, 63 Mo. 19; Emmel v. Headlee, decided February 20, 1888, and not reported. (4) The evidence in this case shows that the contract by the defendant Hayes, to support defendant O'Callahan during his natural life, was a valid contract, founded on a sufficient consideration which had been partly performed by said Hayes before the commencement of this suit. And the court below committed error in setting aside the mortgage given to secure the notes from O'Callahan to Hayes for want of consideration. Sharkey v. McDermott, 91 Mo. 647; Muenks v. Bunch, 90 Mo. 500; Franklin v. Tuckerman, 27 N.W. 759; Gupton v. Gupton, 47 Mo. 37, 46; Halsa v. Halsa, 8 Mo. 303.

Goode & Cravens for respondents.

(1) If the deposition of Mr. O'Day is taken as true it establishes a verbal agreement on the part of Simmons to convey the land in controversy to the defendant O'Callahan, of which there was no such part performance as will take it out of the statute of frauds. O'Callahan was in possession for years before the verbal contract with Simmons is alleged to have been made, and possession, to amount to part performance, must be taken under and pursuant to the contract. Bean v. Valle, 2 Mo. 102-135; Parke v. Leewright, 20 Mo. 85; Charpiot v. Sigerson, 25 Mo. 63; Wiley v. Robert, 31 Mo. 212; Ells v. Railroad, 51 Mo. 200; Spalding v. Conzelman, 30 Mo. 177; Bowles v. Wathan, 54 Mo. 261; Sitton v. Shipp, 65 Mo. 297. Payment of purchase money is not part performance. Galway v. Shields, 66 Mo. 313; Lydick v. Holland, 83 Mo. 703; Barnes v. Railroad, 130 Mass. 388. Acts done prior to the making of an agreement cannot be a part performance of it. Pomeroy on Spec. Perf., sec. 110; Eckert v. Eckert, 3 Penr. & M. 332; Dongan v. Blocher, 24 Pa. St. 28. If they are merely introductory, preparatory or auxiliary to the agreement they are inoperative. Earl of Glengal v. Barnard, 1 Keen, 769; Cooth v. Jackson, 6 Ves. 12; Clerk v. Wright, Atk. 12; Colgrove v. Solomon, 34 Mich. 492. Possession to be part performance must have been notoriously delivered, or taken in pursuance of the contract alleged. Moore v. Small, 19 Pa. St. 461; Charpiot v. Sigerson, 25 Mo. 63; Gregory v. Mighell, 18 Ves. 328; Wood v. Thornly, 58 Ill. 464; Judy v. Gilbert, 77 Ind. 96; Mahana v. Blunt, 20 Iowa 142; Ham v. Goodrich, 33 N.H. 32. It must be unequivocally in execution of the agreement. Wallace v. Rappleye, 103 Ill. 229; Morgan v. Bergen, 3 Neb. 209; Wright v. Puckett, 22 Gratt. 370. Continuance of possession does not constitute performance. Pomeroy on Specif. Perf., pp. 154, 155; Bigelow on Fraud, p. 386; Sugden on Vendors [14 Am. Ed.] sec. 152; Bispham's Prin. of Eq., sec. 385; German v. Machin, 6 Paige, 289; Jones v. Peterman, 3 Serg. & R. 543; Wilmer v. Farris, 40 Iowa 309; Pickerell v. Morris, 97 Ill. 220. The acts must be such as appear to the court would not have been done except on account of the agreement. Browne, Stat. Frauds, sec. 454. They must show some contract between the parties, and parol evidence may then show the details of it. Browne, Stat. Frauds, sec. 455. They must unequivocally refer to the agreement. Browne, Stat. Frauds, sec. 456. The important characteristic of an act of part performance is that it shows of itself an agreement of some sort concluded between the parties. Browne, Stat. Frauds, sec. 457. Possession to be part performance must be notorious, and must have been delivered in pursuance of the alleged contract. Browne, Stat. Frauds, secs. 472, 473, 476. Must be in pursuance of the contract. Browne, Stat. Frauds, sec. 476. Tenant merely continuing possession after contract for new term is no evidence of it. The same reasoning applies of course where the contract set up is the sale of the estate to the defendant by the owner in fee. Browne, Stat. Frauds, sec. 477. The question is quo animo it is taken. Browne, Stat. Frauds, sec. 478. The decided inclination of the judicial mind is against extending, beyond those limits to which it has been carried by clear authority, the doctrine of enforcing oral contracts in equity upon the ground of part performance. Browne, Stat. Frauds, sec. 492. (2) Whether or not the deed of trust made by O'Callahan to T. K. O'Day, trustee for James Hayes, was fraudulent depends on whether or not it was executed in good faith for the purpose expressed by it. It is a question of intention, and was found by the court and jury to have been made with a fraudulent purpose. R. S., sec. 2497; Donovan v. Dunning, 69 Mo. 436. Conveyance of land pending action to prevent collection of judgment is void. Rogers v. Evans, 56 Am. Dec. 537; Venable v. Bank, 2 Pet. 107. Had there been no dishonest motive it would have been constructively fraudulent because a secret trust was reserved to the grantor. Donovan v. Dunning, supra; Lukins v. Aird, 6 Wall. (U. S.) 78. (3) The evidence of O'Callahan about improvements made by him after the alleged parol purchase from Simmons was properly excluded as Simmons was dead. Sitton v. Shipp, 65 Mo. 297; Ring v. Jamison, 66 Mo. 424; Hughes v. Israel, 73 Mo. 538.

Sherwood, J. Barclay, J., absent.

OPINION

Sherwood, J.

-- An equitable proceeding to remove a cloud upon title caused by a deed of trust alleged to have been fraudulently made and for the recovery of the following described land: West half of northeast quarter, section 36, township 31, range 21, and southeast quarter of northeast quarter, section 36, township 31, range 21, and the undivided one-half tract in northeast quarter of northeast quarter, section 36, township 31, range 21.

The answer was a general denial, etc., with a count for specific performance. The other issues raised by the pleadings will be found hereafter as submitted to, and settled by the verdict of, the jury, to which such issues were sent for determination.

The testimony in this cause in relation to the count for specific performance is in substance the same as it was in Simmons v. Headlee, 94 Mo. 482, 7 S.W. 20, which being an action of ejectment, the equitable claim and defense of specific performance was set up. The statement of that evidence, as copied from that case, is the following "John O'Day was introduced as a witness by defendants, and in substance testified that he, in conjunction with his brother, T. K. O'Day, were the attorneys of defendant O'Callahan in a replevin suit, in which he was plaintiff and Landor Sell was defendant; that, on the trial, a part of the property in controversy was found to belong to O'Callahan, and a part to Sell, for which each respectively recovered judgment against the other, as well as a proportionate part of the costs; that execution was issued against the respective parties; that, under the execution issued against Sell, his land was sold at the November term, 1881, of the circuit court of Greene county, and was purchased by said T. K. O'Day for $ 35; that, under an execution which issued on the judgment in Sell's favor against O'Callahan, the land in question was sold on the third of December, 1881, and said P. T. Simmons became the purchaser for $ 25. The witness further stated that, after these sales had been made, the firm of John O'Day & Brother, representing O'Callahan and said Simmons, of the law firm of Simmons & Hubbard, met for the purpose of settling matters between O'Callahan and Sell growing out of these and other judgments; that in the negotiations he...