Gupton v. Gupton
| Decision Date | 31 October 1870 |
| Citation | 47 Mo. 37 |
| Parties | ARRINGTON GUPTON AND WIFE, Appellants, v. A. MADISON GUPTON et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Sixth District Court.
H. M. Drummond and H. M. Boulware, for appellants.
I. An agreement for valuable consideration to make a will in a particular way is valid in law and enforceable in equity. If the contract can not be performed literally and exactly, it will yet be performed substantially if it can be done.
II. Respondent, in taking a conveyance from Barnett, with knowledge of appellants' agreement and part performance thereof, took in fraud of said agreement and of appellants' equitable title growing out of it, and can not avail himself of the protection of the statute of frauds.
III. The execution by Barnett of the will in favor of appellants was a sufficient memorandum in writing to satisfy the requirement of the statute.
IV. The fifth section of the statute of frauds does not render a parol agreement, coming within its operation, void Its effect is to take away the right to enforce such agreement by suit. It affects the remedy, and not the validity of the agreement. (Leroux v. Brown, 12 C. B. 800; 14 Eng. L. & Eq., S. C., 247; Allen et al. v. Schuchardt et al., Am. Law Reg., N. S., 1, 13, and note; Farrar v. Patton, 20 Mo. 81; 2 Sto. Eq. Jur., § 755.) The performance by appellants of their part of the agreement for four years was a sufficient performance of the agreement to exempt it, in equity, from the operation of the statute. It is well settled that the rendition of service not susceptible of accurate measurement in money, is such a part performance of the contract as to take it out of the operation of the statute. Particularly is this the case where the services partake of the nature of pretium affectionis.
V. Plaintiffs are not barred of equitable relief by reason either of the subsequent conveyance by Barnett to his co-defendant, or by reason of the fact that Barnett was living at the time the suit was brought. ( a) The agreement, per se, vested in plaintiffs an equitable estate in the land ( jus in re), and equity will never require a party to abandon this equitable title for an action at law for a breach of the contract. ( b) A subsequent grantee, with notice of a prior agreement to convey either by deed or will, takes in fraud of such agreement, and is treated as trustee of the first vendee or contractee. ( c) This proceeding is in the nature of a proceeding in rem to declare and enforce a trust as against the subsequent grantee with notice. Neither the existence of this trust nor the right to enforce it in equity is dependent upon the death of Barnett. The trust sprang up when the subsequent deed was received, and the right to enforce it arose when the trust itself came into existence. A right of action either against Barnett or his grantee to enforce the agreement in this case, as in all other cases either in law or equity, sprang up when a breach of the agreement occurred; and the execution of the subsequent deed was a breach of the agreement. (Davidson v. Davidson, supra; Van Dyne v. Vreeland, supra.) The fact that this agreement was by parol, but so far performed as in equity to be exempted from the operation of the statute of frauds, is of itself a sufficient ground of equitable relief; for otherwise the party would be utterly without remedy, inasmuch as an action at law for damages for its breach is absolutely barred by statute. .)
Anderson, Lipscomb & Redd, for respondents.
I. If Morgan L. Barnett did, in point of fact, as alleged, promise to devise the lands to plaintiff by will, there is no note or memorandum of such contract, in writing, signed by him; and such promise is void under the statute of frauds. (See R. C. 1855, p. 807, § 5; Whaley v Bagenal, 6 Brown's Parl. Cas. 45; Moore v. Edwards, 4 Ves. 22-3; Cooth v. Jackson, 6 Ves. 38-40.)
II. The furnishing of Barnett and wife with a home from 1863 to 1867 is not such part performance as will take the case out of the operation of the statute of frauds. For such service rendered, plaintiffs have a direct and adequate remedy by action at law. (Moore v. Edwards, supra; Clinan v. Cooke, 1 Sch. & Lef. 40; Hollis v. Whiting, 1 Vern. 151.)
III. The contract between plaintiffs and Barnett, as set out in the first count, was verbal, and has not in all its terms and stipulations been clearly proved; and a court of equity will not, under such circumstances, grant specific performance, even in a case where there has been part performance, but will leave the party to his remedy at law. (2 Sto. Eq., §§ 764-7; Emery v. Wase, 5 Ves. 846.)
IV. It was not in the power of Barnett to perform the contract, viz: convey by will at the time this action was brought (because he had previously conveyed by deed); and plaintiff instituted this suit with full knowledge of the fact. In such case specific performance will not be decreed. (McQueen v. Chouteau's Heirs, 20 Mo. 222; Hatch v. Cobb, 4 Johns. Ch. 560; Hempshall v. Stone, 5 Johns. Ch. 195.) This rule is recited and recognized in the case of Wright v. Tinsley, 30 Mo. 399, cited by plaintiffs; but in that case the promise being that he would leave by will a share of his estate, and the promisee being dead and his estate in a course of distribution, the court could substantially execute the contract by decreeing plaintiffs a share in making distribution.
V. The specific distribution of the contract relied on in this case involves an impossibility. By the terms of the contract the title is to be conveyed by will. No title can pass by will in the lifetime of the testator. Hence, by the terms of the contract, plaintiff was not to have the land until Barnett's death. The court can not compel Barnett to make a will. If made on compulsion it would not be his will. If made voluntarily, the court can not deprive him of the power of revocation. If made voluntarily and permitted to stand unrevoked to the time of Barnett's death, it would not vest in plaintiff any title to the lands in dispute, because he conveyed all his title by deed in his lifetime. The case of Wright v. Tinsley is clearly distinguishable from the case at bar. In that case there had been no conveyance of the subject-matter of the contract. The time fixed by the terms of the contract when the plaintiff should have the property, had arrived; the promisor was dead, and his estate about to be distributed.
VI. Specific execution will not be granted in any case where, from the nature of the contract, the remedy is not and can not be mutual.
This is a petition for the specific performance, or for compensation for its breach, of a contract to make a will in favor of plaintiff. The plaintiff, Mrs. Gupton, is a daughter, by a former marriage, of Celia Barnett, wife of Morgan L. Barnett, both defendants; and the petition alleges that said Morgan L. Barnett, being himself childless, seventy-three years of age, and very infirm, applied to the plaintiffs to take him and his wife to their home, and take care of them during their lives, and, in consideration, agreed to devise and bequeath to them the land in controversy; that plaintiffs accepted the proposition, and in the fall of 1862 took defendants, Morgan and Celia Barnett, into their house, who became members of the family and were kindly and faithfully cared for by the plaintiffs, who are still ready to keep them in comfort and happiness during their lives; that, in pursuance of said agreement, the said Morgan, in 1865, destroyed an old will, and made a new one devising and bequeathing to petitioners all his property; that the possession of the farm in controversy was given up to plaintiff, Arrington, who made improvements upon it, rented it out, and paid the taxes. The petition further shows that on the 10th day of August, 1867, the said Morgan L. Barnett, in violation of his agreement, without consideration, and with full knowledge by the parties of all the facts, conveyed the principal part of his said farm to said A. Madison Gupton, and the remainder to his wife, the said Celia, who have taken possession of the same. The petition closed with several specific prayers and with a prayer for general relief.
The answers deny any agreement to make a will, though they admit that the will was made, and also admit that it was the intention of the testator to dispose of his property according to its provisions, until diverted therefrom by ill-treatment. They also show that the consideration of the conveyance to A. Madison Gupton was the support and maintenance of Barnett and wife during their lives.
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