Sutton v. Hayden

Citation62 Mo. 101
PartiesJONATHAN K. SUTTON, et al., Respondents, v. EDWIN HAYDEN, et al., Appellants.
Decision Date31 January 1876
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court.

Daniel Dillon, for Appellants.

I. The evidence did not prove the contract alleged in the petition.

II. The alleged contract was not established by the kind of evidence, or with that satisfactory proof required by courts of equity in decreeing specific performance.

( a.) The alleged contract is one that the statute of frauds requires to be in writing, and signed by the party to be charged, and the evidence for plaintiffs was entirely oral, and consisted entirely of testimony regarding what was said in casual conversation. (1 Greenl. Ev., §§ 96, 200; 1 Phil. Ev., [5 Am. Ed.] t. p. 396; 2 Sug. Vend, 8 Am. ed., p. 435, and note M. and cases cited; Fleming vs. Donohoe, 5 Ohio, 255; Eyre vs. Eyre, 4 C. E. Green [N. J.], 103.) Moreover, the person who is said to have made these statements is dead. Where this is the case a court of equity will not decree specific performance or divest title on the strength of it. (Marks vs. Pell, 1 Johns. Ch., 594; Johnson vs. Quarles, 46 Mo., 427; Underwood vs. Underwood, 38 Mo., 530-1; Ringo vs. Richardson, 53 Mo., 385; Kennedy vs. Kennedy, 57 Mo., 78.)

( b.) Plaintiff cannot invoke any act of supposed part performance, for the purpose of proving the alleged contract. In order to take a case out of the operation of the statute of frauds, and warrant a decree for specific performance, courts of equity require two distinct things to be satisfactorily proven, first the alleged contract, and secondly, the requisite acts of part performance done under and by virtue of the contract alleged and proved. (Sto. Eq. Jur., § 764; Goodwin vs. Lyon, 4 Port., 305; Parkhurst vs. Van Courtland, 1 Johns. Ch., 284; Tilton vs. Tilton, 9 N. H., 391; Purcel vs. Miner, 4 Wal., 418.)

( c.) The contract has not been established by that satisfactory and determinate proof required by courts of equity in granting specific performance of contracts required by the statute of frauds to be in writing. (Semmes vs. Worthington, 38 Md., 298; Fardy vs. Williams, Id., 493; Forrister vs. Scoville, 51 Mo., 268; Kennedy vs. Kennedy, 57 Mo., 78; Knoll vs. Harvey, 19 Wis., 99; Blanchard vs. McDougal, 6 Wis., 171; Purcell vs. Miner, 4 Wall., 513; Allen vs. Webb, 64 Ill., 342; Reese vs. Reese & Smith, 41 Md., 543.)

The evidence hardly warrants the conclusion that plaintiff Nancy expected or hoped to be compensated by a legacy. But if she did render services with such expectation, she would not only not be entitled to specific performance, but would have no legal claim whatever against Mrs. Green or her estate. (Osborn vs. Gov. of Guy's Hosp., Strange. 728; Little vs. Dawson, 4 Dall. [Pa.] 111; Ackerman vs. Ackerman's Ex'r, 24 N. J., 315.)

III. The evidence does not prove any contract in reference to the property described in the petition. In order that a contract in relation to land may be specifically enforced it must be made with reference to some particular land, and it must point out and describe that particular land. (Fry Spec. Per., § 209; Shelton vs. Church's Ad., 9 Mo., 774; Foster vs. Kimmons, 54 Mo., 488; Reed's Heirs vs. Hamback, 4 J. J. Marsh, 377; Parish vs. Koons, 1 Pars. Sel. Eq. Ca., 95; 1 Sto. Eq. Jur., § 717; Fry Spec. Per., §§ 11, 12.)

IV. The alleged contract was lacking in the quality of mutuality, and therefore, according to the rules of equity, cannot be specifically enforced. (Fry Spec. Per., § 131; Gelston & M. vs. Sigmund, 27 Md., 343-4; Marble Co. vs. Riylay, 10 Wall., 359; Boeine vs. Glading, 21 Penn. St., 53; McMurtrie vs. Bennette, Harring. Ch. R., 126; Mastin vs. Halley, 61 Mo., 196; Fry Spec. Perf., §§ 286, 287; DeRwafinole vs. Corsette, 4 Page 269-70; Sanguirica vs. Bendette. 1 Barb. [Sup. Ct.] 375.)

V. There was no such part performance as took the case out of the statute of frauds. All that it can be claimed that Nancy did, was to render personal service for Mrs. Green. It cannot be said that she went into possession of this property under or by virtue of the alleged contract. The rights of these parties became fixed and vested at the death of Mrs. Green, and she and her husband had possession up to that time; and Mr. Green continued in possession until he died; since which time plaintiffs, who had been living in the house with Mr. Green, have continued to live on the property. The rendering of personal services can, in principle, be no more than paying the purchase money, which courts of equity do not consider such an act as part performance as takes a case out of the statute of frauds. (Horn vs. Ludington, 32 Wis., 73; Sto. Eq. Jur., § 760; Chambers vs. Lecompte, 9 Mo., 575; Wright vs. Wright, 22 Gratt., 370; Cronk vs. Trumble, 66 Ill., 408; Germon vs. Machin, 6 Paige Ch. R., 293.)

Again, the acts of part performance, in order to take a case out of the statute of frauds, must point unequivocally to the contract alleged. It is not enough that the acts are evidence of some agreement. (Sto. Eq. Jur., § 762; Billingslea vs. Ward, 33 Md., 52; Mundorf vs. Kilbourn, 4 Md., 462; Wood vs. Thorn, 58 Ill., 469-70; McMurtrie vs. Bennette, Harring. Ch. R., 126; Millard vs. Ransdell, Id., 392; Ham vs. Goodrich, 33 N. H., 42; Tilton vs. Tilton, 9 N. H., 391.)

VI. Plaintiffs have a complete and adequate remedy at law. If it is true, as they allege, that Nancy A. rendered certain services under a contract with Mrs. Green to be paid a certain consideration, and she had not been paid, plaintiffs are entitled to have a claim for such services allowed in the probate court against the estate of Mrs. Green. If the alleged agreement existed, this case would be similar, on this point, to Horn vs. Ludington, 32 Wis., 73; Ham vs. Goodrich, 33 N. H. 32; Martin vs. Wright, 13 Wend., 460; Jacobson vs. Executors, &c., 3 Johns., 199; Browne Stat. Frauds, § 439; Glass vs. Hulbert, 102 Mass., 35, 36.

The facts in this case do not make out anything resembling the kind of fraud alluded to by courts of equity in this connection.

Hugo Muench, with Hitchcock, Lubke & Player, for Respondents.

The bill sets out a sufficient case for relief in equity. The relief sought against Mrs. Green is equivalent to a decree for specific performance of contract; or to a decree declaring the vendor of land, who refuses to make a deed, a trustee for the vendee who has performed the terms and conditions of sale, and also enforcing such trust by vesting title in vendee.

I. Contracts inter vivos for the grant or devise of property by the one dying first, to the survivor, when clearly proved and upon sufficient consideration, are valid and will be enforced in equity. (Fenton vs. Emblers, 3 Burrows, 1278; S. C., 1 W. Bla. R., 353; Izard vs. Middleton, 1 Dessaus, Ch., 116, and note and cases cited; Rivers vs. Rivers, 3 Dessaus, Ch., 190-195; Loffus vs. Maw, 8 Jur., N. S., 607-609; Rhodes vs. Rhodes, 3 Sandf. Ch., 279; 2 Hargrave's Jurid. Arg., 291-98; Thynn vs. Thynn, 1 Vern., 296; Lester vs. Foxcroft, Colles R. [H. Lords] 108; S. C., 1 White & T. Lead. Cas. Eq., 719 [*625]; 1 Sto. Eq. Jur., § 781.)

II. The objection that the contract was not proved to be in writing, is not valid.

( a.) The proof shows that Mrs. Green did make such an agreement in writing by a letter to Cyrus Goodell, father of Mrs. Sutton, the existence, loss and contents of which were sufficiently proved.

( b.) Abundant proof was also made of repeated verbal promises to like effect, by Mrs. Green, on the faith of which plaintiff Nancy rendered the services in question.

III. Such declarations were competent evidence tending to confirm the proof of an agreement in writing made by other witnesses; and are admissible against appellants, claiming as heirs of Mrs. Green. (Hambright vs. Brockman, 59 Mo., 52, 57; Stewart vs. Glenn, 58 Id., 481; Colt vs. Ladue, 54 Id., 487; 1 Greenl. Ev., §§ 171, 191, 207.)

It was competent by such declarations, in connection with the conduct of the parties interested, to prove a parol agreement enforceable in equity. (Johnson vs. Quarles, 46 Mo., 427; Underwood vs. Underwood, 48 Mo., 531, and cases below cited.)

IV. The case is not within the statute of fraud under the facts proved; and equity will decree specific performance of the promise, though not in writing:

( a.) Because plaintiff having remained in possession of the property for several years after Mrs. Green's death, claiming it as her own on the faith of said agreement, she would be liable for the rents and profits if the agreement were not enforced, which would be a fraud on her against which equity will relieve. (Rhodes vs. Rhodes, 3 Sandf. Ch., 279; Loffus vs. Maw, 8 Jur. N. S., 609; Neale vs. Neates, 9 Wal., 1-9; Swain vs. Seamens, Id., 254, 274; Young vs. Montgomery, 28 Mo., 604; 1 White T. Lead. Cas. Eq., pp. 730, et seq.; Browne, Stat. Frauds, § 463 et seq.; Cases in 2d Hargrave's Jur. Arg., 291-98; Farrar vs. Patton, 20 Mo., 81; Dickerson vs. Chrisman, 28 Mo., 140; 1 Sto. Eq. Jur., §§ 761-5; Thynn vs. Thynn, 1 Vern., 296; Lee vs. Howe, 27 Mo., 524; Griffith vs. Judge, 49 Mo., 540.)

( b.) Because the services which plaintiff was to render, and did faithfully render, to Mrs. Green's complete satisfaction, for eight years, were of a peculiar and personal nature, and cannot be compensated for in damages. (Rhodes vs. Rhodes, 3 Sandf. Ch., 279; Browne on Stat. Frauds, § 463.)

( c.) Because the plaintiff, Nancy A. Sutton did completely fulfill the agreement on her part. (Self vs. Cordell, 45 Mo., 346; Suggett vs. Cason, 26 Id., 221; Pitcher vs. Wilson, 5 Mo., 48; Blanton vs. Knox, 3 Mo., 342.)

SHERWOOD, Judge, delivered the opinion of the court.

This is a proceeding in equity, brought by Jonathan K. Sutton and Nancy A. Sutton, his wife, against Mary A. Smith and others, as heirs at law of one Mrs. Nancy A. Green, deceased, and Edwin Hayden, as trustee, for the purpose of having the title to a certain house and lot, fully...

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