West v. Bundy

• Citation: 78 Mo. 407
• Parties: WEST v. BUNDY et al., Appellants.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

78 Mo. 407

WEST

v.BUNDY et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

L. Douglass and W. W. Caldwell for appellants.

Wm. Heren & Son for respondents.

MARTIN, C.

This was a suit in equity, commenced on the 16th day of February, 1877, for the purpose of adjudging and enforcing a contract for the conveyance of a farm. It was brought by the heirs of Marion Bundy against Milton J. Bundy and Mary A. Adams, the widow of James A. Bundy, deceased. It is alleged in the petition that in February, 1870, James A. Bundy, deceased, was owner in fee of the farm in controversy, situated in Andrew county, containing about 400 acres; that sometime in the same month, for a good and valuable consideration, he gave this farm to Marion and Milton, who were his two sons; that immediately thereafter Marion went into possession, and Milton soon after entered with him into the joint possession thereof; that they expended great labor and large sums in making valuable improvements thereon, claiming the same as their own; that said James A. Bundy, the donor, promised to deed the farm to them and made out deeds for the same, but neglected to deliver the same as he had promised; that Marion died in possession of said farm intestate and unmarried, and that plaintiffs are his heirs.

It is further alleged that after the death of Marion, his brother Milton, in 1873, brought suit against James A. Bundy, the donor, to compel a specific performance of his contract to give a deed; that said suit was compromised by a decree vesting the whole title in said Milton; that in the decree the right of Marion to one-half of the farm was recognized, and that said Milton gave his notes in the sum of $5,000 therefor to said James A., secured by a deed of trust on the land deeded to him as aforesaid. It is alleged that said James A. died in July, 1875, and that the heirs of said Marion, plaintiffs to this suit, are also the heirs of said James A. The plaintiffs claim that said Marion was entitled in equity to one undivided half of said farm, and that the same is vested in the plaintiffs. It is prayed that the judgment in the compromise suit be set aside, and that Milton J. be adjudged to convey an undivided half of said land to plaintiffs.

After the suit was brought, Mary A. Adams, the widow of James A. Bundy, and her second husband, upon their joint application, were made parties to the suit. Milton J., being a non-resident, came in after publication, and suffered default while personally present in court. This left the litigated part of the controversy to go on between the plaintiffs and the widow of James A. Bundy, who claimed to be his sole devisee and owner of the notes and deed of trust. In her answer, after admitting the ownership by James A. Bundy, and the fact of the suit and the compromise, she makes denial of the petition. She also sets up new matter, to the effect that the notes and deed of trust were given to James A. Bundy in consideration of his procuring a quit-claim deed to said Milton from one Douglass, who possessed the legal title to the land; that the quitclaim was procured and the notes and deed of trust were delivered to said James A. in his lifetime, who assigned and delivered them to her trustee for a good and lawful consideration; that she is the legal owner of the notes and deed of trust; that Milton J. is possessed of no property in this State out of which the same can be made; that James A. Bundy died in April, 1874, and left her sole devisee as to all his real and personal property; that as the widow of James A. she is entitled to one-third of the land and notes in the right of dower; that Milton J., in 1875, entered into possession and is now wrongfully in possession of said undivided third, unjustly withholding the same and the rents and profits thereof. The court found the issues in favor of the plaintiffs, and rendered a decree to that effect on the 10th day of December, 1877. Mrs. Adams and her husband have prosecuted this appeal.

It only remains for us to determine whether the evidence supports the decree. It will be necessary for us to recite the substantial part of the testimony, noting the controverted points to which it was directed. That the testimony should be conflicting in a case of this kind is to be expected. Notwithstanding this, the equity to be administered in this case ought to be clear and commanding, to justify the issue of its extraordinary and far-reaching mandates. The counsel for the defendants have furnished a very elaborate and able brief discussing the principles which govern the character of this class of actions. This is altogether unnecessary. The equity invoked by the plaintiffs has been so often recognized and defined in the decisions of this State that nothing is left for conjecture or debate. An agreement for the gift of lands will not be enforced against the donor upon mere proof of the promise or undertaking to give, however clearly it may be proved, and whether it be written or verbal. As long as the obligation is executory and rests solely upon the declarations, promises and undertakings of the donor, he may revoke it and equity will not compel him to fulfill it. But when the promise has been accepted in good faith, and the donee on the strength of it has changed his condition in life, entered into possession of the land, made improvements, incurred obligations and expended money for and on account of it, equity will compel the donor to keep his agreement and make perfect his gift. Under these circumstances it is held that the acts and doings of the donee take the promise out of the statute of frauds if it is by parol. And whether written or not written, it ceases to be any longer a voluntary agreement; the acts and doings aforesaid of the donee taking the place of and constituting a valuable consideration to support the promise and call for its enforcement. There is no doubt about this being the law in this as well as most of the states. Halsa v. Halsa, 8 Mo. 303; Sutton v. Hayden, 62 Mo. 101; Sitton v. Ship, 65 Mo. 297; Lobdell v. Lobdell, 36 N. Y. 327; Freeman v. Freeman, 43 N. Y. 34; Peters v. Jones, 35 Iowa 512; Bright v. Bright, 41 Ill. 97; Shepherd v. Bevin, 9 Gill 32; Neals v. Neals, 9 Wall. 1.

The only difficulty which is encountered attends the application of these principles to the contradictory and conflicting testimony which is almost invariably presented in this class of actions. It appears from the evidence that, in 1869, James A. Bundy was a gentleman of considerable wealth, valued at $35,000, or more, residing in Galesburg, Illinois, his wife still living; that he had two sons named respectively Marion and Milton, both married men; that Milton was residing in Kansas on a farm of his own which his father had helped him to purchase; that Marion was a man of dissipated habits, whose wife had been compelled to leave him and sue for divorce; that his father thought it would be beneficial to him to settle him down on a farm, and to that end looked round for one; that after examining several in company with Marion, he finally concluded a purchase of the one now sued for, which pleased him, and bought it from Mr. Sanders, the owner, for $14,000, of which three or four thousand dollars were paid down in cash, and the balance in the following March, when possession was to be given. At the time of the purchase Mr. Bundy declared frequently that the farm was bought for Marion, and that he intended he should have it. Marion entered upon the place at once in 1869 with the license and permission of Sanders, and was allowed to do anything there which would not conflict with his work or interest. He boarded with Sanders, hired men and planted hedges and re-set rail fences. In the spring of 1870, he purchased property for the farm, but with money furnished by his father. James A. Bundy, after shipping some hogs to the farm, came out from Galesburg about the 1st day of March. On being asked when he purchased the farm, to whom the deed should be made, he said, after some little hesitation, to himself, conveying the impression that he wanted to see how Marion would conduct...