Anderson v. Scott

• Decision Date: 07 May 1888
• Citation: 8 S.W. 235,94 Mo. 637
• Court: Missouri Supreme Court
• Parties: ANDERSON v. SCOTT.

8 S.W. 235

94 Mo. 637

ANDERSON v. SCOTT.

Supreme Court of Missouri.

May 7, 1888.

SPECIFIC PERFORMANCE — WHEN GRANTED — PAROL PROMISE TO CONVEY.

A promise by plaintiff's husband, since deceased, to defendant, his son-in-law, of a gift of certain land, on condition that he would buy an adjoining tract, which he bought, and on which he made improvements, will not be specifically enforced in equity after the promisor's death; it appearing that defendant had the use of the promised land, but made no improvements thereon, and there being no proof that the improvements on the purchased land were made on the faith of the gift.¹

Appeal from circuit court, Pettis county; JOHN P. STROTHER, Judge.

Action of ejectment by Mary J. Anderson against Nicholas H. Scott. Judgment for defendant, and plaintiff appeals.

George P. B. Jackson, for appellant. G. W. Barnett, for respondent.

BLACK, J.

This was an action of ejectment, commenced in April, 1881, for 100 acres of land in Pettis county. Prior ownership in George Anderson is conceded, who, by his last will, dated 19th December, 1879, and probated in March, 1880, devised the land to his widow, the plaintiff in this suit. Defendant married a daughter of the plaintiff and her deceased husband. By way of an equitable defense, he sets up, in his amended answer, that Anderson requested him to purchase an adjoining 85 acres from the Sedalia Savings Bank; that Anderson promised to give him the 100 acres in suit if he would buy and build upon the 85 acres; that he did buy and build upon the 85 acres; that, at the time he took possession of the 85 acres, Anderson gave him possession of the 100 acres, and promised to make him a deed as soon as he (Anderson) got a conveyance of the land from Mills, in whom the legal title was then vested. Anderson had purchased this and other lands, in all 300 acres, from Mills, but did not get a deed therefor until shortly before his death. The deed bears even date with the will, 19th December, 1879. Defendant, or defendant and Mr. Anderson, purchased the 85 acres from the bank in 1877 or 1878, and the deed therefor was made to the defendant in April, 1879. At the time of the purchase the defendant took possession, built a house, barn, and made some other improvements on the 85 acres purchased of the bank. He, at the same time, took possession of the 100 acres, and continued in the possession thereof to the commencement of this suit, but it does not appear that he made any improvement on that tract. Mr. Scott, the former assessor, testified: "I don't remember that Mr. Anderson ever gave in the land, but instructed me to assess it to Nich. Scott, the defendant, and said either that he had given it to Nich.'s wife, or was going to give it to her, and defendant went into possession the next fall or spring. Anderson instructed me to assess this 100 acres and 20 acres of timber to defendant. I have no recollection of what year it was he said this." Leftwick says he had a conversation, date not given, with Anderson, which he relates as follows: "I met him near the land. I asked him why he didn't build on that 100 acres a tenement house, and rent it. He said he had given it to his daughter Mary; said he had told Nich. that, if he would buy that 85 acres from the bank, he would give him the 100 acres; that it would make him and Mary a nice little farm; and he said: `I have done it; I think it will be eight years next spring.' Nich. was not in possession then, but commenced improving that spring." Another witness says Anderson told him he had given the 100 acres to Mary, the defendant's wife; but the date of this conversation is not given. A Mrs. Majors says, a short time after the defendant was married, Anderson told her he had given another daughter money to build a house, and intended to settle defendant and his wife on the 100 acres. She also states: "Afterwards he told me that he told Nich., if he would buy the bank land, he would give him the 100 acres. He said that Nich. had bought the bank land. He said he intended to give the 100 acres, and wanted him to build on it, but Nich. thought it would be too near the corner. Nich. did not build on the 100 acres, but on the bank land." Mr. Thompson, the president of the bank, says he had a conversation with Anderson some six months before the latter's death; that they were then fixing up matters about the sale of the 85 acres. Witness says: "The arrangement was made with Anderson. He said he intended to give Nich. the 100 acres adjoining the 85 acres, and he wanted to buy this 85 acres for Nich. We held the 85 acres at about $1,600, and my recollection is that Nich. paid this off, and Anderson directed the deed to be made to Nich., and I think it was so made. I sold the 85 acres to Anderson at $20 per acre. I didn't get any understanding about it. I knew the money had been paid. Never saw anybody make the payment. It was reported paid for, and I made the deed. I was president of the bank. Our cashier received the money." The other evidence shows that, at the date of the purchase of the bank land, defendant lived upon rented land; that Anderson left a widow and eight children, and that he owned seven or eight hundred acres of land. The statement with record is that he devised all of his property, real and personal, to his wife.

These principles of law have been settled by repeated adjudications of this court, namely: An agreement for a gift of land...