Brown v. Slusser

• Decision Date: 07 June 1930
• Docket Number: 29,378
• Citation: 130 Kan. 834,288 P. 743
• Parties: ALFRED BROWN, Appellee, v. SOPHIA SLUSSER, Appellant
• Court: Kansas Supreme Court

288 P. 743

130 Kan. 834

ALFRED BROWN, Appellee, v. SOPHIA SLUSSER, Appellant

No. 29,378

Supreme Court of Kansas

June 7, 1930

Decided January, 1930.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

VENDOR AND PURCHASER -- Oral Contract to Convey for Services -- Evidence. Where one relies upon an oral contract with a deceased owner of the record title to real estate, whereby a conveyance of such title was promised as a gift or compensation for services rendered, there must be some clear and satisfactory proof of the making of such contract and of the primary facts constituting the same. Testimony of witnesses who heard the deceased owner say such was his intention and purpose, or that he was going to do so, is not of the character necessary to establish the making of the contract or the terms thereof, but is merely corroborative thereof.

James M. Meek, of Kansas City, for the appellant.

Justus N. Baird, of Kansas City, for the appellee.

OPINION

HUTCHISON, J.:

The appeal in this case is from the order of the trial court in an ejectment action discharging the jury and holding there was insufficient evidence to sustain an alleged oral contract giving an equitable title in certain real property.

The plaintiff held legal title as devisee of the record owner of the property involved, which was a lot in Kansas City with a dwelling thereon. The defendant admitted in her answer the possession alleged in her, and by way of cross petition alleged an oral contract with the deceased record owner, who was a cousin of the defendant and an old soldier, inmate of the soldiers' home at Leavenworth, whereby he was to assist this defendant in paying off the indebtedness and purchasing this real property occupied by her since 1877 and lost by foreclosure of a mortgage thereon, and was to have a room in the house for himself and live with the defendant, and she was to pay the taxes on the property, keep it in repair, board him when there, and do all the washing, ironing and repairing of his clothing, and when the indebtedness was fully paid then the defendant should have and own the property in her own right. She further alleged that all the payments have been made and that she has performed all the conditions on her part to be performed, and that he lived there and made his home with her from 1916 until his death in April, 1927. She therefore prayed that the plaintiff take nothing, but that her title be quieted against the claims of the plaintiff.

A jury was called and the defendant assumed the burden of proof. The evidence showed that the defendant and her brother inherited this property from their mother, and in 1911 executed a warranty deed to secure a loan thereon, taking back a contract for repurchase. This deed was foreclosed as a mortgage, and sheriff's deed issued to mortgagees in 1914. After this she continued to occupy the property as a tenant at $ 12 per month rent.

It further shows that in 1916 Oliver Brown, her cousin, the old soldier, started making his home with her. The front room in the house was set apart for his use and from that time until his death he spent part of his time in her home and part at the soldiers' home, going back and forth two or three times a month. In 1922 a deed was executed conveying this property to Oliver Brown, he having purchased it some time before, but the payment of balance was made in subsequent installments. He was assisted to some extent in making these payments by the defendant, but it is not shown in what amount. There seems to be no question about Oliver Brown continuing to occupy the room in the house and to board and live with the defendant until his death, and that defendant cared for his room, cooked, washed, ironed and mended for him during that time.

A number of neighbor women testified that Oliver Brown had told them he was going to help Sophia, the defendant, pay off the debt or redeem the property and wanted her to have it as a home as long as she lived.

An attorney testified to having written three wills for Oliver Brown during the time he lived with defendant, the last one devising this property to his brother, the plaintiff; and the first one gave a life estate in the property to the defendant. After the writing of the first will there arose serious differences between Brown and the husband of the defendant which led them to have each other arrested occasionally, and finally Brown brought an action of detainer as to this property against the defendant, which was decided in his favor, but a new trial was granted and the case stood in this condition at the time of Brown's death, and was not revived.

The trial court, after hearing all the evidence in the case at bar, held that the oral contract giving defendant an equitable title in the property was not sustained by the evidence, and took the case from the jury and rendered judgment for plaintiff in ejectment.

If in the judgment of the court the evidence did not sustain the defense, it was perfectly proper to take the case from the jury because there was no further issue involved except the equitable title, the sufficiency of the evidence in support of which is purely a matter for the consideration of the court, but the appellant insists that the evidence of the neighbor women,...