Atkins v. Sayer

• Decision Date: 22 January 1924
• Docket Number: C. C. 264.
• Citation: 121 S.E. 283,95 W.Va. 403
• Parties: ATKINS v. SAYER ET AL.
• Court: West Virginia Supreme Court

121 S.E. 283

95 W.Va. 403

ATKINS v. SAYER ET AL.

C. C. No. 264.

Supreme Court of Appeals of West Virginia.

January 22, 1924

Submitted January 15, 1924.

Syllabus by the Court.

A bill for the specific execution of a parol contract for conveyance of land, which charges that plaintiff, under the contract with his aged sister and her husband, moved upon and took exclusive possession of the land, made valuable improvements thereon, paid the taxes, and that he has remained in open exclusive, notorious, continuous, and peaceable possession thereof for 14 years, during which time he supported and maintained them until their respective deaths with the understanding and agreement that the land should be conveyed to him for such services, is not demurrable.

If the allegations of the bill be proven, the contract is not barred by the statute of frauds.

In such case, where the bill charges that a deed to plaintiff for the land sued for was actually signed and acknowledged by the sister and husband, to be delivered to him when called for such deed, if so executed and held, is a sufficient memorandum in writing to save the contract from the bar of the statute of frauds.

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, née 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 services 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 susta...