Sitton v. Shipp

• Decision Date: 31 October 1877
• Parties: MARTHA A. SITTON AND HER HUSBAND v. SHIPP ET AL., PLAINTIFFS IN ERROR.
• Court: Missouri Supreme Court

65 Mo. 297

MARTHA A. SITTON AND HER HUSBAND

v.SHIPP ET AL., PLAINTIFFS IN ERROR.

Supreme Court of Missouri.

October Term, 1877.

Error to Lincoln Circuit Court.--HON. W. W. EDWARDS, Judge.

Dryden & Dryden with Norton & Martin for plaintiffs in error.

Wagner, Dyer & Emmons for defendants in error.

NAPTON, J.

There has been, of late years, but little diversity of opinion in regard to the principles upon which courts of equity decree a specific performance of a parol contract to convey land. The difficulty has been in applying these principles to a given case, or rather, more frequently, in ascertaining the facts upon which the interposition of the court is proposed. Where there has been possession taken by one having no title, with the consent of the owner, the necessary inference is, that such possession is in conformity to some contract between the owner and the party taking possession. In some cases the mere act of taking possession may indicate the contract under which it is taken; but in most cases the act does not of itself establish the character of the contract under which possession is acquired. The usual order of introducing evidence is, however, reversed in bills for a specific performance, and the plaintiff is allowed first, to show his possession and the circumstances attending it, in order to raise a presumption of some contract, but this contract must be ultimately proved, unless the possession alone proves that it is only consistent with the contract claimed, and that no other hypothesis would be able to account for it.

In this case, the plaintiff, Mrs. Sitton, was the daughter of Mrs. Robertson, the owner of the tract of land in dispute, and the defendants are another daughter and two grandchildren by a deceased daughter. The plaintiffs, Mr. Sitton and his wife, in 1866, were living on a tract of land adjoining to the one owned and occupied by Mrs. R. In that year they moved into Mrs. Robertson's house, and Mr. Sitton took charge of the farm, comprising about thirty acres, in the tract of one hundred acres, and fitted up a room for Mrs. Robertson in the house, and they all lived together after this until the death of Mrs. R., in 1873. The plaintiffs claimed, in their petition, that this occupancy was under a contract with Mrs. Robertson, which they assert to have been as follows: “that in consideration that plaintiffs would abandon their own home and move with their family into the house of said Mrs. R. and take charge of and support and maintain her during her life, and provide her a home and take care of and properly keep such articles of personal property, horses, stock, &c., as she might desire from time to time to keep and hold in her possession, she would sell, transfer and convey by a good and sufficient deed of conveyance in fee simple absolute said land to the said Martha Ann Sitton; that she, the said Mrs. R., in consideration of the premises, so soon as she might thereafter be physically able to do so, would go to the town of Troy in said county, and execute in due form of law a deed of conveyance of said one hundred acres of land to said Martha Ann and her assigns forever, conveying all the right, title and interest which the said Mrs. R. had in and to the said lot.” The plaintiffs then proceed to aver: “That these plaintiffs accepted and agreed to the terms and stipulations of the contract and agreement so entered into by and between the said Julia Ann Robertson and these plaintiffs; that thereupon the said plaintiffs, in the month of April, 1866, broke up housekeeping at their own house, and removed with their entire family, goods, chattels, property and effects of every character and description, to the home and premises of the said Julia Ann Robertson on said lot. That the said Julia Ann then and there, in consideration of the premises and in pursuance of said contract and agreement * * * surrendered and delivered up to the plaintiffs full and complete possession and control of the said lot of land with all and singular the fixtures, rights, privileges and appurtenances belonging to the same; that the plaintiffs then and there, in consideration of said contract * * * and relying upon the promises and good faith of said Julia Ann, and fully believing that she would faithfully do and perform all that she had promised and agreed in and about the conveyance of said premises to said Martha Ann, entered upon the said premises and took full and complete possession of the same, and have continued to hold, occupy, use and enjoy the same ever since, and still hold the same, in all respects holding the same as their own property; that in pursuance of said contract plaintiffs took the said Julia A. into their family as a member thereof; that plaintiffs at great labor, trouble and expense to themselves, repaired and fitted up a part of the dwelling house * * * and set apart the same for the exclusive use of said Julia Ann, and that she continued to live with plaintiffs until her death; that plaintiffs took care of her, provided all things necessary for her support, comfort and maintenance, and in so far as they were able, provided for all her wants and necessities. * * * They further say that, in addition to the work and labor and money expended in and about the repairing and fitting up a portion of the dwelling house as aforesaid, the plaintiffs renewed and kept in good repair the entire fencing around and upon said premises; that they made permanent and valuable improvements upon said premises, and at a large outlay of money and labor set out upon the premises, and have since * * * attended to and preserved in good order and condition, an apple orchard of * * * 600 trees. They say said Julia Ann did not keep and perform said agreement * * * but on the contrary * * * she in her life time wholly failed and neglected to make the said deed of conveyance * * * to said Martha A., as she had by the terms and stipulations of said agreement bound and obligated herself to do. They further say that said Julia Ann, on the 15th day of May, 1867, did, as she at the time stated for the purpose of complying with said agreement and investing the said Martha A. with the full title to the said premises, to take effect after her death, make and execute an instrument in writing, duly signed, sealed and witnessed as required by law, purporting to be her last will and testament, and delivered the same to these plaintiffs, by which said instrument she devised to the said Martha A. Sitton absolutely said lot of 100 acres. The said instrument has been in plaintiffs' possession continuously ever since the date of its execution. They say that they are informed and believe that the said Julia Ann did, but a short time previous to her death, without informing plaintiffs of her intentions in that regard and without calling upon them to deliver up to her for cancellation the said instrument, undertake to make...