81 S.W. 390 (Mo. 1904), Asbury v. Hicklin

Citation:81 S.W. 390, 181 Mo. 658
Opinion Judge:VALLIANT, J.
Party Name:ZOE ASBURY v. HICKLIN et al.; JOSEPHINE HICKLIN, Appellant
Attorney:O. L. Houts for appellant. W. W. Wood and J. W. Suddath for respondent.
Judge Panel:VALLIANT, J. Marshall, J., not sitting.
Case Date:May 25, 1904
Court:Supreme Court of Missouri
 
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Page 390

81 S.W. 390 (Mo. 1904)

181 Mo. 658

ZOE ASBURY

v.

HICKLIN et al.; JOSEPHINE HICKLIN, Appellant

Supreme Court of Missouri, First Division

May 25, 1904

Appeal from Johnson Circuit Court. -- Hon. Wm. L. Jarrott, Judge.

Reversed and remanded (with directions).

O. L. Houts for appellant.

(1) Even if Mrs. Baldwin, who was covert, was capable of making the contracts alleged in the petition, which is denied, before plaintiff can recover she must show by proof so clear and forcible as to leave no reasonable doubt in the mind of the chancellor that Mrs. Baldwin, by a contract clear and definite in terms, agreed to give at her death her property to plaintiff, in consideration of personal services to be rendered by her to Mrs. Baldwin, and that such services had been faithfully performed by plaintiff, and that the acts performed referred to and resulted from that contract, and are such as would not have been done unless on account of that very agreement and with a direct view to its performance. Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Steele v. Steele, 161 Mo. 566; Teats v. Flanders, 118 Mo. 660; Sutton v. Shipp, 65 Mo. 297; Goodwin v. Goodwin, 172 Mo. 48; Shehan v. Sivan, 48 Ohio St. 39; Nickerson v. Nickerson, 127 U.S. 76; McTague v. Finnegan, 54 N.J.Eq. 457. The same cogency of testimony is necessary to establish a contract of this character as is necessary to establish a resulting trust. Berry v. Hartzell, 91 Mo. 134; Pitts v. Weakley, 155 Mo. 109. The contract could not be proved by evidence of declarations made by Mrs. Baldwin, who was deceased at the time of the trial. To establish the contract, such declarations must have been "strongly corroborated" by evidence of so cogent a character as to leave no room for reasonable doubt in the mind of the chancellor who heard the case. Courts place little reliance in testimony of declarations of deceased persons when used to affect legal title to property; not because of the want of credibility of witnesses, but in consequence of the extreme uncertainty of human recollection and the inability of witnesses to detail all that was said or the language spoken. Berry v. Hartzell, 91 Mo. 132; Fanning v. Doan, 139 Mo. 392; Pitts v. Weakley, 155 Mo. 109. This is a suit for specific performance of a contract. Parties are not entitled to specific performance of a contract as a matter of right. It requires much less strength of case to resist a bill for specific performance than it does to maintain one. Specific performance never will be enforced when performance would be inequitable. Veth v. Gierth, 92 Mo. 97. (2) Mrs. Tyler could not testify in this case and the trial court properly excluded her evidence. R. S. 1899, sec. 4652; Banking House v. Rood, 132 Mo. 261; Bank v. Slattery's Admr., 166 Mo. 620; Wright v. Tinsley, 30 Mo. 389.

W. W. Wood and J. W. Suddath for respondent.

(1) A verbal contract made for the sale or disposition of land is not void under the statute if the contract is partially performed. Sutton v. Hayden, 62 Mo. 101; Koch v. Hebbel, 32 Mo.App. 103; Fuchs v. Fuchs, 48 Mo.App. 18; West v. Bundy, 78 Mo. 407; Clark v. Cordy, 69 Mo.App. 6; Sharkey v. McDermott, 91 Mo. 647; Teets v. Flanders, 118 Mo. 660; Nowack v. Burger, 133 Mo. 24; Halferty v. Scearce, 135 Mo. 433. (2) A contract of a married woman for the sale and disposition of real estate and personal property belonging to her as legal estate, is not void but good. Bank v. Hageluken, 165 Mo. 443; Brown v. Dressler, 125 Mo. 589; Blair v. Railroad, 89 Mo. 391; Broughton v. Brand, 94 Mo. 174; Halferty v. Scearce, 135 Mo. 433; Neimer v. Neimer, 70 Mo.App. 609; Long v. Martin, 71 Mo.App. 569. (3) A court of equity will specifically enforce a parol promise to adopt another as child and heir or to leave to another the whole or a definite portion of one's estate as a reward for peculiar personal services received, or other acts to be done by the promiser, which are not susceptible of a money valuation, and were not intended to be paid for in money, where there has been such partial or full performance that the refusal to complete would work a fraud upon the opposite party. Gupton v. Gupton, 47 Mo. 37; Sharkey v. McDermott, 91 Mo. 647; Nowack v. Berger, 133 Mo. 24; Lynn v. Hockaday, 162 Mo. 111; Godine v. Kidd, 19 N.Y.S. 33; Brinton v. Van Cott, 8 Utah 480, 33 P. 218; Burns v. Smith, 21 Mont. 251, 69 Am. St. 653; Johnson v. Hubbel, 10 N.J.Eq. 332, 66 Am. Dec. 773; Owens v. McNally, 113 Cal. 445, 45 P. 710; Van Dyne v. Vreeland, 11 N.J.Eq. 371; Wright v. Wright, 23 L. R. A. 196, 99 Mich. 170; Kofka v. Rosicky, 41 Neb. 328, 25 L. R. A. 207; Vantine v. Vantine, 15 A. 249. (4) At any time after the passage of the Act of March 25, 1875, Mrs. Baldwin had the right to dispose of her personal property, even if acquired before the passage of that act, subject to the marital rights of her husband. If plaintiff has established the agreement alleged in the complaint, defendant can under no circumstances have any interest in the personal property, and it is immaterial whether it was acquired before or after the passage of the Married Woman's Act. The petition only seeks to have the contract performed as to the personal property of which Mrs. Baldwin died seized, and in the hands of John Baldwin as administrator. As to this, it must be presumed that it was her separate or statutory property or John Baldwin would not have taken possession of it as such. Indeed, he would be stopped by doing so, from claiming otherwise. In his answer he expressly admits plaintiff's right to the personal property and he alone has the right to dispute plaintiff's right upon the ground urged in appellant's fifth point. R. S. 1899, sec. 6864 and 6869; Bank v. Hageluken, 165 Mo. 443. (5) Under the Revised Statutes of 1889 and since that date a married woman may contract to convey any of her property, real or personal, without reference to when she received it. "Her power is the same as a feme sole and not limited to any particular class of contracts or confined to any species of property." Brown v. Dressler, 125 Mo. 594; Bank v. Hageluken, 165 Mo. 443. (6) A party may contract to make a will. Koch v. Hebbel, 32 Mo.App. 103; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647. (7) Under all the authorities she could contract to convey and if she could not convey by deed but could by some other means, then the court would compel her to convey in the manner that she possessed the ability to convey, and she could do this by will. R. S. 1889, sec. 8869; Sutton v. Hayden, 62 Mo. 101. (8) (a) Mrs. Tyler was a competent witness. The statute only disqualifies a witness from testifying in his own favor where the other party is dead, and where a witness has no interest in the controversy he is not testifying in his own favor. Ford v. O'Donnell, 40 Mo.App. 63; Godine v. Kidd, 64 Hun 593. (b) An agent for one of the parties is clearly a competent witness where the other contracting party is dead, for he has no interest in the subject-matter of the litigation and is clearly not testifying in his own favor. Stanton v. Ryan, 41 Mo. 510; Clark v. Thias, 173 Mo. 643; Baer v. Pfoff, 44 Mo.App. 39; Leahy v. Simpson, 60 Mo.App. 83; Leeper v. McGuire, 57 Mo. 360; 29 Am. & Eng. Ency. Law, pp. 718, 719. (c) Mrs. Tyler, while not technically an agent, occupies the same relation to the plaintiff as if she were such. Godine v. Kidd, 64 Hun 593. (9) The proviso in the statute relates only to those who are parties to or interested in the suit. Loker v. Davis, 47 Mo. 140; Angel v. Hester, 84 Mo. 142; Meier v. Thieman, 90 Mo. 441; Baer v. Pfoff, 44 Mo.App. 39. (10) (a) The statute is an enabling one instead of disabling, and a witness is competent to testify to any fact he might have testified to at common law. Ring v. Jamison, 66 Mo. 429; Angell v. Hester, 64 Mo. 142; Meier v. Thieman, 90 Mo. 442; Kulin v. Ins. Co., 71 Mo.App. 308; Baer v. Pfoff, 44 Mo.App. 39; Leahy v. Simpson, 60 Mo.App. 84; Samuel v. Bartel, 53 Mo.App. 588. (b) Agents were competent witnesses at common law. 1 Greenleaf on Evidence (14 Ed.), secs. 411-416. (11) (a) In Nowack v. Berger, 133 Mo. 37, Mrs. Nowack (or Schumer) was both a party to the contract and to the cause of action and was therefore testifying in her own favor. (b) In Banking House v. Rood, 132 Mo. 256, the agent under discussion was an agent of the corporation and therefore in the eyes of the law the corporation itself; and the court overlooked the provision of the statute that he is only incompetent to testify "in his...

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