Atkins v. Sayer

• Decision Date: 22 January 1924
• Docket Number: (C. C. No. 264.)
• Citation: 121 S.E. 283
• Parties: ATKINS. v. SAYER et al.
• Court: West Virginia Supreme Court

121 S.E. 283

ATKINS.

v.SAYER et al.

(C. C. No. 264.)

Supreme Court of Appeals of West Virginia.

Jan. 22, 1924.

(Syllabus by the Court.)

Question certified from Circuit Court, Mingo County.

Suit by R. F. Atkins against Mary Sayer and others. A demurrer to the bill was sustained, and a motion to strike a special plea overruled and the question certified. Ruling reversed.

Stafford & Rhodes, of Williamson, for plaintiff.

LIVELY, J. Having sustained the demurrer to plaintiff's bill and overruled a motion of plaintiff to strike a special plea, setting up the statute of frauds in bar to the bill, the circuit court certified its rulings to this court for review.

The bill prays for the specific performance of a verbal contract for a tract of land containing about 12.1 acres surface lying on the waters of Big Munsey, in Mingo county, the title to which is now in defendants, the heirs at law of Matilda Ferrell, deceased. The bill charges, in substance, that Matilda Ferrell and her husband, Jacob Ferrell, in their declining years, induced plaintiff, the only living brother of Matilda Ferrell, nee Atkins, to move upon the tract of land in question and support and maintain them in their declining years, both being very old at that time, under the express verbal promise and agreement that for such services faithfully performed they would convey to him the said tract of land, together with another tract of about 12 acres in fee adjoining, of which they then had possession. That, in pursuance of said agreement and contract, he moved upon the land, took possession thereof, faithfully performed his part of the contract for a period of 14 years, his serv-ices thereunder to both his sister and her husband amounting to much more than the value of both tracts of land; that he has paid the taxes and has made valuable improvements thereon, and that during that time both his sister and her husband departed this life being well satisfied with his services under the agreement; that he is now in possession of the land in pursuance of the contract; that his sister departed this life some time before Jacob Ferrell, her husband, and that before her death she and her husband actually made, executed and acknowledged a deed for the two tracts of land to the plaintiff, which deed was placed with the papers of his sister in the house to "be delivered to him whenever he called therefor; that he neglected to call for the deed, and after her death he and her husband made diligent search among the papers for the deed so executed but it and other valuable papers could not be found, and have never since been found. Upon demurrer to the bill it was amended by leave of the court, the amended bill setting out substantially the grounds for specific performance above narrated. The known heirs are named as parties as well as heirs who are unknown. Mary Sayer, one of the defendants, demurred to the original and amended bills and each paragraph thereof, which demurrer the court sustained. Two of the defendants, Sal-lie Brewer and Polly Adams, tendered and filed a special plea to the amended bill, averring that Matilda Ferrell never executed any contract or agreement in writing for the sale of the land mentioned in the bill or any interest therein,, and that there was never any memorandum or note in writing of any such agreement, nor was there any verbal contract made with the plaintiff for the transfer of the title to said land to him; that the alleged contract is unenforceable because of the statute of frauds. The court overruled the ...