Anderson v. Scott

• Decision Date: 07 May 1888
• Parties: Anderson, Appellant, v. Scott
• Court: Missouri Supreme Court

8 S.W. 235

94 Mo. 637

Anderson, Appellant, v. Scott

Supreme Court of Missouri

May 7, 1888

Appeal from Pettis Circuit Court. -- Hon. J. P. Strother, Judge.

Reversed and remanded.

G. P B. Jackson for appellant.

(1) The parol contract or promise relied upon must be alleged with certainty, and must be clearly proven as alleged, by convincing evidence, so that there is no ambiguity or doubt. Loose statements in casual conversation are not sufficient to prove the promise. Sitton v. Ship, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Ackerman v Fisher, 57 Pa. St. 457. In the case at bar, the allegations of the answer are not definite as to the supposed promise, while the evidence is so vague as to leave us in doubt whether any promise was ever made at all, and if any was made, it was the statement of a mere intention. (2) No matter how clearly it may be proved, an agreement for the gift of lands, whether written or verbal, will not be enforced without the proof of acts done on account of it. As long as the obligation is executory and rests only upon the declarations and promises of the donor, he may revoke it, and equity will not compel him to fulfill it. Hagar v Hagar, 71 Mo. 610; West v. Bundy, 78 Mo. 410; Dougherty v. Harsel, 91 Mo. 161-67. In this case, it is not shown that anything was done on account of any supposed promise of Anderson. (3) The acts relied on to take the parol promise out of the statute of frauds must refer to the promise, and must result from and be done in pursuance of it, and must be such as could not reasonably be imputed to any other circumstance. Cases supra; Phillips v. Thompson, 1 Johns. Ch. 131. Here nothing was done that could not reasonably have been as well done without a promise of a gift as with it. (4) The ground upon which equitable jurisdiction is exercised in enforcing parol agreements relating to real estate, is to prevent a fraud being practiced, by invoking the statute of frauds. Freeman v. Freeman, 43 N.Y. 34; Anderson v. Shockley, 82 Mo. 250; Temple v. Johnson, 71 Ill. 13. In this case, there is no injury or fraud upon the defendant, if the alleged promise is not enforced. (5) In a case of gift from parent to child, the fact of possession alone is not sufficient. Eckert v. Eckert, 3 Pen. & Watts [Pa.] 332; Pinckard v. Pinckard, 23 Ala. 649; Ackerman v. Ackerman, 24 N.J.Eq. 315, 585; Poorman v. Kilgore, 26 Pa. St. 365; Cox v. Cox, 26 Pa. St. 375; Harris v. Richey, 56 Pa. St. 395; Bright v. Bright, 41 Ill. 97; Galbraith v. Galbraith, 5 Kan. 402; Mims v. Lockett, 33 Ga. 9; Gwynne v. McCauley, 32 Ark. 97; Browne on Stat. Frauds, sec. 467; Pomeroy Spec. Perf., sec. 130. It must further appear that there has been a change in condition of life; that money and labor has been expended in the improvement of the particular property, etc., in pursuance of the promise, under such circumstances as would operate a fraud on the promisee, if it were not enforced. West v. Bundy, supra; Sutton v. Hayden, 62 Mo. 101. None of these things exist in this case.

G. W. Barnett for respondent.

(1) The parol contract or promise relied on in this case is alleged with certainty, and clearly proved. The proof does not rest alone in loose statements in casual conversation, but defendant acted on the statements made, and altered his situation in life, by abandoning his home on the Woods farm, by purchasing the bank eighty acres, by taking possession of both of the tracts at the same time, and by making improvements and paying the taxes on the tract in dispute. And, further, deceased, in addition to his repeated statements that he had given the land to defendant, directed it to be assessed to him. In addition to this, the acts of both parties were such as to lead the public to recognize and treat this as defendant's property. We, therefore, insist that these facts are sufficient to take the transaction out of the statute of frauds. Desplain v. Carter, 21 Mo. 331; Sitton v. Shipp, 65 Mo. 297; Paris v. Haley, 61 Mo. 453; Sutton v. Haydon, 62 Mo. 101; West v. Bundy, 78 Mo. 407, Anderson v. Shockley, 82 Mo. 250; Young v. Montgomery, 28 Mo. 604; Neale v. Neale, 9 Wall. 1; Kurtz v. Hibner, 55 Ill. 514; Langston v. Bates, 84 Ill. 524; 1 Story's Eq. Jur. [11 Ed.] sec. 763, p. 816; Nivens v. Belknap, 2 Johns. 572; Dickerson v. Chrisman, 28 Mo. 134. (2) The act of taking and holding possession is such performance as will take the transaction out of the statute of frauds, where, as in this case, he takes possession as the owner, and where he would not have taken possession had he not considered himself in that light. Desplain v. Carter, 21 Mo. 335, 336; Neale v. Neale, 9 Wall. 1; Nivens v. Belknap, 2 Johns. 587; Young v. Montgomery, 28 Mo. 604. Possession alone is sufficient, if it is such possession as is only consistent with the contract claimed, and such possession that no other hypothesis would be able to account for it. Sitton v. Shipp, 65 Mo. 298; 1 Story's Eq. Jur. [11 Ed.] sec. 763. (3) In equity cases, the appellate court will defer much to the opinion of the chancellor below, and will not disturb the decision except in cases free from doubt. Chouteau v. Allen, 70 Mo. 336; Erskine v. Lowenstein, 82 Mo. 301: Sharpe v. McPike, 62 Mo. 300; Berry v. Hartsell, 91 Mo. 132; Cornet v. Bertelsman, 61 Mo. 126; Judy v. Bank, 81 Mo. 410; Bayle v. Jones, 78 Mo. 403; Wilson v. Maxwell, 57 Mo. 147. (4) While it must clearly appear what is the contract sought to be enforced, yet the certainty need only be a reasonable one, satisfactory to the court in regard to the subject-matter of the contract and the circumstances under which it was entered into. Paris v. Haley, 61 Mo. 458; Neale v. Neale, 9 Wall. 1.

Black J. Ray, J., absent.

OPINION

Black, J.

This was an action of ejectment commenced in April, 1881, for one hundred acres of land in Pettis county. Prior ownership in George Anderson is conceded, who, by his last will, dated the nineteenth of 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 defence, he sets up in his amended answer that Anderson requested him to purchase an adjoining eighty-five acres from the Sedalia Savings Bank; that Anderson promised to give him the hundred acres in suit if he would buy and build upon the eighty-five acres; that he did buy and build upon the eighty-five acres; that at the time he took possession of the eighty-five acres Anderson gave him possession of the hundred 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, three hundred acres, from Mills, but did not get a deed therefor until shortly before his death. The deed bears even date with the will, the nineteenth of December, 1879. Defendant, or defendant and Mr. Anderson, purchased the eighty-five 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 eighty-five acres purchased of the bank. He, at the same time, took possession of the hundred acres and continued in the possession thereof to the commencement of this suit, but it does not appear that he made any improvements 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 Nick Scott, the defendant, and said either that he had given it to Nick'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 hundred acres and twenty acres of timber to defendant. I have no recollection of what year it was he said this."

Leftwich 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 hundred acres a tenement house and rent it; he said he had given it to his daughter Mary; said he had told Nick that if he would buy that eighty-five acres from the bank he would give him the hundred 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. Nick was not in possession then, but commenced improving that spring."

Another witness says Anderson told him he had given the hundred acres to Mary, the defendant's wife, but the date of this conversation is not given. A Mrs. Major 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 hundred acres. She also states: "Afterwards he told me that he told Nick if he would buy the bank land he would give him the hundred acres; he said that Nick had bought the bank land; he said he intended to give the hundred acres and wanted him to build on it, but Nick thought it would be too near the corner. Nick did not build on the hundred 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 eighty-five acres. Witness says "The arrangement was made with Anderson; he said he intended to give Nick the hundred acres adjoining the eighty-five acres, and he wanted to buy this eighty-five acres for Nick; we held the eighty-five acres at about sixteen hundred dollars, and my recollection is that Nick paid this off and Anderson directed the deed to be made to Nick, and I think it was so made; I...