Austin v. Davis

• Decision Date: 12 March 1891
• Citation: 26 N.E. 890,128 Ind. 472
• Parties: Austin v. Davis et al.
• Court: Indiana Supreme Court

128 Ind. 472

26 N.E. 890

Austin

v.Davis et al.¹

Supreme Court of Indiana.

March 12, 1891.

Appeal from circuit court, Marion county; Livingston Howland, Judge.

Hammond & Rogers, for appellant. T. S. Rollins, for appellees.

COFFEY, J.

The complaint in this cause consists of three paragraphs. The material allegations in the first paragraph are, substantially, that in the year 1868, when the appellant was four years of age, John S. Johnson and Elizabeth D. Johnson, husband and wife, without children, and residing in the city of Indianapolis, proposed, in writing, to the mother of the appellant, then living alone with the appellant at the town of Neoga, in the state of Illinois, that if the said mother would surrender to them the appellant they would take her as their own child, provide for her and bring her up as their own, and at their death leave her all their property; that said proposition was contained in a letter written to the mother of the appellant by the said Elizabeth D. Johnson, and signed by her for her said husband, John S. Johnson, and herself; that the letter is lost, and a copy cannot be filed with the complaint; that said proposition was accepted, and the custody of appellant surrendered to the said Johnson and Johnson; that in the year 1869 said John S. Johnson, by proceedings in the proper court, adopted the appellant as his daughter, and she thereupon took upon herself the name of Johnson; that the said Elizabeth Johnson was present in court at the time said proceedings were had, and gave her assent thereto, and thereafter promised the mother of the appellant that she would treat appellant as her daughter; that thereafter the appellant remained with said Johnson and Johnson, rendering them all the duties, affection, and obedience due from a natural child, until she was 18 years of age, when, with their consent and approval, she intermarried with Charles Austin, which marriage occurred in the year 1882, and that during the time she so lived with them she was treated as their daughter; that the said John S. Johnson departed this life on the 6th day of April, 1887, having disposed of his property to the said Elizabeth D. Johnson while yet in life, and leaving no children except the appellant; that the said Elizabeth D. Johnson at all times, up to the time of her death, treated the appellant as her daughter, and declared that she desired the appellant to have all her property after her death; that the said Elizabeth D. Johnson died intestate on the 8th day of March, 1888, leaving no issue of her body, nor the descendants of any issue, but leaving the appellant, whom she had up to the time of her death reared, trained, and loved, and held out to the world as her child, and whom she had declared up to the time of her death she desired to take and have all her property, both real and personal; that the appellees claim to be the heirs of the said Elizabeth D. Johnson, and deny the right of the appellant to any portion of the property owned by the said Elizabeth at the time of her death. This paragraph contains a description of the real estate owned by Elizabeth D. Johnson at the time of her death, and alleges that the personal estate amounts to the sum of $900, and prays that the right of the appellee to said property be ascertained and fixed by a proper decree. The second paragraph of the complaint, in legal effect, does not differ materially from the first paragraph, except in that it alleges that Elizabeth D. Johnson was in court at the time the record was made adopting the appellant by John S. Johnson, and believed herself to be a party thereto, and to be bound thereby, and that she died in that belief; that the property conveyed by John S. Johnson to his wife, the said Elizabeth D. Johnson, was a voluntary conveyance, and without any consideration whatever; and at the time she took the same she had full knowledge of the obligations of the said John S. Johnson to the appellant under the terms of said contract. No question is made in this court in relation to the third paragraph of the complaint, and we need not, for that reason, state its contents. The circuit court sustained a demurrer to each paragraph of the complaint, and the propriety of that ruling is called in question by a proper assignment of error.

This is not an action by the appellant to recover damages for a breach of the contract set up in the complaint, nor is it an action to recover the value of services rendered by the appellant to John S. Johnson and Elizabeth D. Johnson, but the complaint is constructed upon the theory that the appellant is entitled to specific performance. It has been decided by this court that where a childless husband and wife, in consideration that a young girl should live with them until the death of both, in all respects as their own child, and render such services as she was capable of doing, orally agreed to make her their heir, and at their death, or the death of the survivor, to will her the entire estate of which they were possessed, consisting, at the death of the survivor, of real estate, and also of personal property exceeding in value $50, the agreement was within the statute of frauds, and that a performance on the part of the girl did not take it out of the statute. Wallace v. Long, 105 Ind. 522, 5 N. E. Rep. 666, and authorities there cited. It is sought by the complaint before us to take the case at bar out of the rule announced in this case by alleging that the contract was embodied in a letter written to the mother of the appellant. If a contract which comes within the statute of frauds can be extracted from correspondence between the parties upon the subject of the contract, the statute is satisfied. Wills v. Ross, 77 Ind. 1;Loan & Trust Co. v. Beville, 100 Ind. 309. The allegations in relation to the letter resulting in the contract set up in the complaint are somewhat vague and uncertain. We are left in doubt as to whether the name of John S. Johnson was signed to the letter, which it is alleged was written by appellant's mother. It is not alleged that John S. Johnson wrote the letter, but the...