Bollen v. Shinoe (In re Shinoe's Estate)

• Decision Date: 10 October 1933
• Citation: 212 Wis. 481,250 N.W. 505
• Parties: IN RE SHINOE'S ESTATE. BOLLEN v. SHINOE.
• Court: Wisconsin Supreme Court

212 Wis. 481

250 N.W. 505

IN RE SHINOE'S ESTATE.

BOLLEN

v.SHINOE.

Supreme Court of Wisconsin.

Oct. 10, 1933.

Appeal from a judgment of the County Court of Grant County; W. J. Brennan, County Judge.

In the matter of the estate of Lewis Shinoe, deceased. Claim by William H. Shinoe against the estate for specific performance of an oral contract to convey land. From the judgment, Cora Bollen appeals.

Reversed, with directions.

Claim for specific performance of an oral contract to convey land filed June 25, 1929, against the estate of a decedent by one of the decedent's two only heirs. Counterclaim for an accounting to the estate for profits withheld by claimant made in conducting farming operations under a sharing agreement with decedent. Judgment entered July 19, 1932, granting specific performance and adjudging an amount due on the counterclaim. The other heir appeals from the portion of the judgment decreeing specific performance, and from the portion adjudging recovery against the claimant on the ground of insufficiency of the award. The facts sufficiently appear from the opinion.Kopp & Brunckhorst, of Platteville, for appellant.

Harry E. Carthew, of Lancaster, for respondent.

FOWLER, Justice.

The appellant's contentions are that: (1) The alleged agreement was not proved; (2) the claimant's possession was not such as to entitle him to the remedy of specific performance; (3) the remedy of specific performance is barred by the statute of limitation and laches; (4) the remedy of specific performance should be denied because of inequitable conduct of the claimant; (5) the trial court erred in not awarding a larger amount due the estate upon the counterclaim.

[1][2] 1. The only evidence tending to support the county judge's finding that the contract was made may be summarized as follows: Mr. Croft, a neighbor of the claimant, testified that the decedent stated to him on two occasions that the claimant owned one-half the farm; and that the decedent said he would like to sell his part “and get it straightened up.” Another witness testified that the decedent said to him that the claimant had a half interest in the farm. Mrs. Bollen, a sister of the claimant and decedent's only other heir, testified that in 1898 the father bought a tract of land referred to as the Longbotham tract, which constituted the larger part of his farm, and borrowed the money to pay for it, and that it was then agreed between the claimant, her husband, and the father that both the claimant and her husband should stay with the father on the farm and help pay off the debt and each should have a one-third interest in the tract purchased. The claimant testified to this also, but his testimony was objected to on the ground that he was incompetent to testify to a transaction with his deceased father. The receipt of his testimony, if it was erroneous, was rendered harmless by reason of the sister's subsequent testimony. The son at the time of the triparty agreement was living upon the farm with his father and mother and he continued to live with them thereafter. Bollen, the son-in-law, abandoned this agreement, and the son testified that when he did so he (the claimant) was going to leave the farm and told his mother so. She wanted him to stay. After this conversation with his mother he talked with his father and came to an agreement with him, and that as a result of the agreement he remained on the farm until the father's death. The claimant also testified when called adversely to prove the counterclaim that he and his father were to share the profits made in conducting the farm and in buying cattle and feeding them thereon. The deceased left the management of the farm entirely to the claimant. Out of the profits of the farm some permanent improvements were made upon it. Until the mother's death the proceeds of sales from the farm were turned over to the mother. After her death the son received them. Prior to the purchase of the Longbotham tract, the son had remained and worked on the farm ever since he became of age, some seven or eight years, and then had some personal property which remained on and was used in conducting the farm. The son has never married. After the mother's death in 1917, the father and son continued to live and work together upon the farm until some five years before the father's death in 1928, when the father to secure better care went to live with the daughter. When the Longbotham tract was bought the title was taken by the father and the purchase price borrowed upon security of a mortgage placed upon the whole farm. This mortgage was paid off from the profits of the farm. The last payment was made in 1904.

If an adverse examination of the claimant taken before filing the counterclaim, and another taken thereafter before the trial, were considered as in evidence, the agreement of the father to convey might be considered as proven, although it would perhaps be indefinite as to whether it covered anything more than the Longbotham tract. We find these adverse examinations in the bill of exceptions. The only part of the record bearing upon their receipt in evidence is as follows: At the close of the claimant's case upon the trial, his counsel, after offering specifically several documents referred to on the trial, said: “I want to offer in evidence the petition of Cora Bollen (the sister), also all of the records and files and papers in this court in the matter of the Estate of Lewis Shinoe, deceased.” Opposing counsel then asked: “Does this include the claim against the estate?” Claimant's counsel answered that it did and that he wished to offer specifically the claim of Wm. Shinoe (claimant) and the objection to it made and filed. Opposing counsel: “We object to that as incompetent, irrelevant and immaterial.” Claimant's counsel then said: “You mean to object to the claim?” And opposing counsel answered: “The whole thing.” The court made no ruling.

We are of opinion that in this state of the record the adverse examinations cannot be considered as in evidence. No specific mention was made of the adverse examinations. They were clearly not receivable when offered, as the claimant was incompetent under section 325.16, Stats., to testify to any transaction or communication by him personally with the decedent and at that time there had been no “opening of the door” by contestant. Upon the trial counsel opposing the claim had objected on the ground stated to every question put to the claimant involving a transaction with the deceased and the court had sustained the objections. Had a specific offer of the examinations been made, he would certainly have objected to them on this ground.

[3][4] Moreover, the adverse examinations of the claimant could not be put in evidence by the claimant himself. The statute, under the rule inclusio unius, exclusio alterius, prohibits it. Section 326.12 (5), Stats.; Lange v. Heckel, 171 Wis. 59, 175 N. W. 788;Lamberson v. Lamberson, 175 Wis. 398, 411, 184 N. W. 708. The reason the party taking the deposition may put it in evidence is because it is an admission against interest. The party whose deposition is taken cannot use it, because as to him it is only a self-serving declaration, under oath it is true, but he is usually present to testify, and such is the instant case, and being present, there is no need to use his deposition. The depositions were never offered at all by counsel for the contestant, so they are not properly in evidence at all. Adverse examinations are not part of the record of the trial until they are offered. Lamberson v. Lamberson, supra. Manifestly counsel for the contestant did not have the depositions in mind when claimant's counsel made his omnibus offer. It does not appear whether claimant's counsel had them in mind or not. If he did, he should in fairness have mentioned them specifically. If he did not, he cannot with good grace claim they are in evidence. In either case we cannot consider them as in evidence. The learned county judge does not state whether he considered them or not in arriving at his conclusion, although it is not apparent how he could have found the agreement was made without considering them, especially as he stated during the trial, when all the evidence bearing in any way upon the making of the alleged agreement was in, that: “This is the most jumbled up pieces of testimony I think I have ever listened to. * * * No person like myself can take up this testimony that has already been presented and give a proper decision.”

[5][6] It is elementary that to warrant a decree of specific performance the evidence must be clear, satisfactory, and convincing. In re Estate of Powell, 206 Wis. 513, 516, 240 N. W. 122, and cases cited. We consider the evidence herein manifestly insufficient to support a finding that the decedent made the agreement claimed.

[7] This, however, does not exclude the claimant from the relief of specific performance under the original triparty agreement proved by the claimant by the testimony of Mrs. Bollen. That agreement was proved and persists, until it is replaced by a subsequent agreement or is abandoned. The claimant is not permitted under the statute to prove the subsequent agreement which he claims to have been made. The proof shows that he has fully performed the original agreement. We are of opinion that he should be awarded judgment under the undisputed evidence for specific performance of the original agreement for a one-third interest in the Longbotham tract, unless the appellant's contention under 2, 3, or 4 is sustained.

[8] 2. In support of his contention that the claimant's occupancy of the farm with his father was not such taking possession under an oral contract to convey as is necessary to support specific performance, the appellant relies on Marshall & Ilsley Bank v. Schuerbrock, 195 Wis. 203, 217 N. W. 416, and Rodman v. Rodman, 112 Wis. 378, 88 N. W. 218. Other decisions of this court bearing...