Berry v. Hartzell
| Decision Date | 28 February 1887 |
| Parties | Berry et al. v. Hartzell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. J. B. Gantt, Judge.
Affirmed.
Railey & Burney for appellant.
(1) Defendant went into possession of the land in controversy under parol contract of sale in October, 1878; made improvements, and paid out money for said Baskin, prior to his death. This was sufficient to take the case out of the statute of frauds. Adair v. Adair, 78 Mo. 633; West v. Bundy, 78 Mo. 407, 410; Wood on Frauds, p 826, sec. 488, and cas. cit.; Tatum v. Brooks, 51 Mo. 148. (2) Defendant was in possession of the land, and the contract upon his part had been wholly performed before the death of Baskin. The statute of frauds can, therefore constitute no defence against the relief prayed for by said defendant. Winters v. Cherry, 78 Mo. 344. (3) Baskin, in his lifetime, had mortgaged the land for all it was worth. He and his wife had made arrangements to move to Kansas, or on the Barber place, and evinced no disposition to claim the property as a homestead until after Baskin's death, and not until Mrs. Baskin married J. J. Berry, in 1881, two years after Baskin's death. She received, in conjunction with her husband (Baskin), the one thousand dollars -- being the full value of the tract in controversy and with part of this sum, according to her own testimony, bought the Barber land for four hundred and fifty dollars, and, although the deed was formerly made to Baskin, yet she had his deed destroyed and a deed made to ber absolutely for the property bought of said Barber. No homestead claim was ever filed by either Baskin or wife, but, on the contrary, they moved out of the main building in October, 1878, and delivered possession thereof to defendant, and Mrs. Baskin, after her husband's death, agreed and promised to make a deed to defendant for same. The homestead claim was, therefore, a fraud and subterfuge; and the court seems to have ignored the first count, setting up same, in its decree. (4) Mrs. Baskin was clearly an incompetent witness. Holman v. Bachus, 73 Mo. 51. The competency of Mrs. Baskin as a witness was not raised, yet the court must determine the legal effect of her testimony. She knew nothing of the contract, and her testimony is nearly altogether hearsay. It ought not, therefore, to be entitled to any weight. Bartlett v. O'Donoghue, 72 Mo. 564. (5) She suffered defendant to remain in peaceable possession from 1879 to 1883, without making any claim or demand for homestead, but, on the contrary, agreeing to make a deed, until she married her present husband. No wonder, therefore, the court below passed the claim of homestead sub silentio.
W. J. Terrill for respondents.
(1) To decree a specific performance is largely within the discretion of the chancellor, and cannot be awarded unless the terms of contract and its performance are clearly proven, and are not indistinct, or indefinite. Paris v. Halley, 61 Mo. 453, 459; Taylor v. Williams, 45 Mo. 84; Wat. Spec. Per. [Ed. 1881] secs. 146, 152, 158, p. 190; Johnson v. Quarles, 46 Mo. 427; Tedford v. Trimble, 3 West. Rep. 442; S. C., 87 Mo. 226. (2) The defendant could not plead one consideration of payment -- four hundred and fifty dollars -- and recover upon another (not pleaded without amendment to his answer had at the time), the mere procuring of the trade to sell the Cass county land by Barber -- the payment therefor having actually been made by Baskin. Newham v. Kenton, 79 Mo. 382-5; Jackson v. Hardin, 83 Mo. 186; Priest v. Way, 3 West. Rep. 256-9; S. C., 87 Mo. 16. (3) It is presumed, where there is conflicting testimony, and there is evidence to support the finding of the judge in equity cases, that the chancellor took into consideration the character of the witnesses, and gave their testimony its full weight, harmonized with all the facts and circumstances in evidence, and the court would defer much to the opinion of the trial court, Sharpe v. McPike, 62 Mo. 300-309; Erskine v. Loewenstein, 82 Mo. 301-309; Chouteau v. Allen, 70 Mo. 336. (4) But the equitable defence here interposed in a suit at law did not change it, in this respect, from the rule applicable to a suit at law, and the court would not reverse where there was evidence to support the finding, and especially where no injustice is done the defendant. The issues were questions of fact, and no documentary evidence to be given legal effect. Shulenberg v. Boothe, 65 Mo. 475; Birney v. Sharp, 78 Mo. 77; Dewar v. Bank, 1 West. Rep. 628, and cas. cit.; Gregory v. Chambers, 78 Mo. 298, and cas. cit. (5) The widow was a competent witness, as a party in interest of this land. The case cited by appellant is not in bar, the widow there being not a party in interest. The objection was not made at the time. Tingley v. Cowgill, 48 Mo. 291-296; Fugate v. Pierce, 49 Mo. 444; Primm v. Raboteau, 56 Mo. 412; Bell v. Railroad, 86 Mo. 599-607, and cas. cit. (6) The testimony by defendant as a witness, so far as excluded by the court, was incompetent under the statute, Baskin being dead. Johnson v. Quarles, 46 Mo. 424-7; Weiland v. Weyland, 64 Mo. 168-170. (7) There was no intent to abandon the homestead right, even by the widow, and there could be no abandonment as against minor children. Rogers v. Mayes, 84 Mo. 523.
The plaintiff brought suit for certain land in Bates county, claiming it as their homestead, under A. J. Baskin, the late husband of Mrs. Berry, and the father of the minor plaintiffs. The legal title was admitted to have been in Baskin, acquired by deed, in 1874, and he "farmed the land as a home." The defence, set up in the answer, alleged a purchase of the land from Baskin in his lifetime, and a delivery of possession by Baskin, a payment by defendant of the purchase money in full, which was used by the deceased in buying another homestead in Cass county, now occupied by plaintiff, and that a promise by the decedent to execute a general warranty deed to defendant was made, which promise was not kept. The answer concluded with a prayer which is tantamount to a prayer for specific performance, i. e., that the title be divested out of plaintiffs, and vested in defendant, in accordance with the contract.
The main question before the trial court, therefore, was, whether such a contract was entered into by the deceased and the defendant. Of course, his testimony could not establish it, but, while being examined on other matters, he stated, "I did not pay any money for that land, nor was anything given for the payment." This admission went to the extent of showing that he had not performed the contract, if a contract there was, on his part. And, besides, the testimony of Mrs. Berry, who was a competent witness in her own behalf, and in behalf of her minor children (Moore v. Moore, 51 Mo. 118; Joice v. Branson, 73 Mo. 28, and cas. cit.; Owen v. Brockschmidt, 54 Mo. 285; Evers v. Life Association, 59 Mo. 429; Harriman v. Stowe, 57 Mo. 93; Steffen v. Bauer, 70 Mo. 399), shows that the four hundred and fifty dollars, which was paid to Barber for the Cass county place, was paid out of the one thousand dollars, raised by Baskin, by a mortgage he gave on the premises in controversy, shortly before he died, and on this point there is no conflict in the testimony. The case of Holman v. Bachus, 73 Mo. 49, does not apply in this instance, because Mrs. Berry was not testifying to conversations had with her husband, but in relation to facts. And, at all events, it is too late to make the point here, that she was incompetent to testify, when no such objection was made in the court below.
No error was committed in rejecting defenda...
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