Carney v. Carney

• Decision Date: 04 June 1888
• Citation: 95 Mo. 353,8 S.W. 729
• Parties: CARNEY et al. v. CARNEY et al.
• Court: Missouri Supreme Court

8 S.W. 729

95 Mo. 353

CARNEY et al. v. CARNEY et al.

Supreme Court of Missouri.

June 4, 1888.

1. STATUTE OF FRAUDS — AGREEMENTS RELATING TO LAND — EXECUTED CONTRACT.

Defendants, under a verbal contract with their father to pay the interest and debt due on certain land for the purchase price, and to take care of their father and mother for life, and in consideration thereof to have the land, had for 15 years labored on the land, paying debts and liabilities, and taking care of their parents according to the contract. Held, that the contract was so far executed by them as to take it out of the statute of frauds.¹

2. EJECTMENT — EVIDENCE — ADMISSIONS OF DECEASED GRANTOR.

Where defendants, in an action of ejectment, claim title to the land involved through a verbal contract with their father, since deceased, evidence of statements made by the father to others in relation to the contract may be received in connection with other testimony.

3. APPEAL — REVIEW — OBJECTIONS NOT RAISED BELOW.

An objection to the competency of a witness, on the ground that the other party to the transaction testified to is dead, will not be considered by the appellate court, when that specific objection to the evidence was not expressly raised in the lower court.

4. SAME — PRESUMPTIONS.

The ruling of the trial court, excluding certain records and papers of the probate court, will be presumed to be correct where there is nothing in the record to identify or show what those papers were.

Appeal from circuit court, Knox county; BEN E. TURNER, Judge.

Ejectment by Jackson F. Carney and others against Isaac Carney and George S. Carney. Judgment for defendants. Plaintiffs appeal.

S. F. Cottey, for appellants. O. D. Jones, for appellees.

RAY, J.

This is an action of ejectment, with petition in the ordinary form. The plaintiffs (with the exception of Cottey, who is a purchaser from one of the heirs) and defendants are all children of one Alexander Carney, deceased, who died in 1879. Plaintiffs claim five-eighths of the land in controversy as heirs of said Carney, while the defendants, Isaac and George S. Carney, who are in possession, claim the entire tract under the parol agreement, alleged in the answer to have been made with their said father in 1865 or 1866, by the terms of which they were to pay the interest and debt on the land, take care of their father and mother, who were then old, as long as they lived, which they alleged has been done by them, and in consideration thereof they were to have the land in dispute as their own. The answer, in addition to the said parol agreement, sets up the statute of limitations, which, however, cuts no figure in the case. The plea of the attempted execution of a will by said Alexander Carney, devising the lands in question to defendant Isaac, in furtherance of said verbal agreement, is also immaterial, even if well pleaded, and need not be noticed further in this connection. The pleadings are of unusual length, and a further statement of them, we think, is unnecessary to a proper determination of the questions involved in this appeal, which is taken by plaintiffs from the judgment in the cause had and obtained in favor of defendants.

The position of plaintiffs, which was asserted at the trial in several ways, and is now urged here, that the verbal agreement set up in the answer, and relied on by defendants, is within the statute of frauds and perjuries, is, we think, under the facts, untenable. It appears that Alexander Carney, deceased bought the land, and gave bond for the purchase money to Knox county in 1855; that he moved upon it shortly thereafter, and that in 1865 or 1866 some 10 or 20 acres had been put in cultivation, and a log house built thereon; that, being old and unable to do much work, in debt for the land and apprehensive about payment of the interest and balance of the purchase money due the county, he at that time made the said verbal agreement with his two sons, who were then living with him on the place; that shortly thereafter said Alexander Carney and defendants went to the county-seat with a view of having the county court transfer the lands to defendants; but the court was busy that day, and told them to come back, which, however, it seems they neglected to do, and no further action in that behalf was ever taken. It seems that the other children, who are plaintiffs in the action, all married, and at various times, long prior to the death of said Alexander Carney, went to their own homes while the two defendants continued to reside on the place with their father, and after said parol agreement in 1865 or 1866, and in pursuance thereof, possessed and cultivated the farm, furnished the family supplies, did the cooking and farm work generally, paid some interest on the bond for the purchase money, and perhaps one payment of $50 on the principal; also some taxes and some other debts of their father, and at the date of suit had extended the cultivation of the farm so as to embrace some 65 acres. The father and mother...