Brownlee v. Fenwick

• Decision Date: 24 February 1891
• Parties: Brownlee, Appellant, v. Fenwick et al
• Court: Missouri Supreme Court

15 S.W. 611

103 Mo. 420

Brownlee, Appellant, v. Fenwick et al

Supreme Court of Missouri, Second Division

February 24, 1891

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Samuel Boyd for appellant.

(1) Appellant insists that the evidence shows beyond any reasonable doubt that a contract was made in 1869 between plaintiff and his father, whereby plaintiff agreed to take care of his father and mother during their lives; and that in consideration thereof, he was made to have the immediate possession of the farm in controversy and have the use and occupancy of it during the life of his father and mother and, when they were dead, to have the full title of the land and that plaintiff fully performed his part of the agreement; and that no deed or will was ever made by his father, giving him the full title to the land as was agreed; and that the plaintiff is entitled to have said contract specifically performed. 3 Pomeroy's Equity, p. 456, sec. 1409; Farrar v. Patton, 20 Mo. 81; Anderson v. Shockley, 82 Mo. 250; Dickson v. Chrisman, 28 Mo. 134; Townsend v. Hawkins, 45 Mo. 286; Paris v. Haley, 61 Mo. 453; West v. Bundy, 78 Mo. 407; Greenl. Ev. [13 Ed.] sec. 47, pp. 56, 57. (2) The defendants, G. A. Pettit, John Herndon, Larkin Reynolds, were incompetent as witnesses, and should not have been permitted to testify. Their wives were defendants and the real parties in interest. They had no interest, and it is not pretended they were acting as agents for their wives. Their wives had never been seized of the land. Witness Fenwick occupied the same position, and was incompetent to testify to any fact occurring prior to his becoming administrator. Witness Jones was also incompetent; his children were parties, claiming as heirs of their mother, who died after the death of her father, Andrew Brownlee. Wood v. Broadley, 76 Mo. 23; Paul v. Leavitt, 53 Mo. 595; Hearl v. Krien, 65 Mo. 202. (3) The court erred in allowing damages to defendant Fenwick, upon the dissolution of the injunction. The principal purpose of this action being to adjudicate the question of title, and no motion to dissolve the injunction ever having been made, the allowance of counsel fees was improper. High on Injunction [2 Ed.] sec. 1686.

Scott & Cooney for respondents.

(1) The evidence failed to prove any contract authorizing a recovery Parkhurst v. Van Courtlandt, 1 John. Ch. 282; Mastin v. Halley, 61 Mo. 196; Underwood v. Underwood, 48 Mo. 427; Foster v. Kimmons, 54 Mo. 488; Paris v. Halley, 61 Mo. 453. (2) The alleged contract is within the statute of frauds and the evidence of plaintiff was entirely oral and consisted of mere repetition of oral statements of what was said by the decedent to mere strangers in casual conversation. This was insufficient as a basis of a decree for specific performance. 1 Greenl. Ev. [12 Ed.] p. 229, sec. 200; Purcell v. Coleman, 4 Wall. 513; Johnson v. Quarles, 46 Mo. 423; Underwood v. Underwood, 48 Mo. 530; Ringo v. Richardson, 53 Mo. 385; Kenedy v. Kenedy, 57 Mo. 78; Sitton v. Shipp, 65 Mo. 297; Tedford v. Trimble, 87 Mo. 226. (3) There was no such part performance as took the case out of the statute of frauds. The plaintiff was living on the land with his father at the time the contract is alleged to have been made, and there was no such changed relations between the plaintiff and his father as comes within the meaning of the rule establishing an act of part performance. Anderson v. Scott, 94 Mo. 637; Underwood v. Underwood, 48 Mo. 527; Price v. Hart, 29 Mo. 171; Spaulding v. Conzelman, 30 Mo. 177. (4) Even if there ever was any such contract between the plaintiff and his father as that alleged in the petition, it was long ago waived or rescinded by the parties. The subsequent actions of the parties show this very conclusively. Tolson v. Tolson, 10 Mo. 736-740; Fine v. Rogers, 15 Mo. 315-321. (5) The husbands of deceased's daughters who were parties to the action and their wives were competent witnesses. Their marital rights in the property gave them such an interest as entitled them to testify on their own behalf, and it is immaterial that their testimony will necessarily affect their wives' interest also. Steffen v. Bauer, 70 Mo. 399; Cooper v. Ord, 60 Mo. 420; O'Bryan v. Allen, 95 Mo. 68. (6) The assessment of damages for attorney's fees on the injunction bond was proper. High on Injunctions [2 Ed.] sec. 1685; Railroad v. Shepley, 1 Mo.App. 254; Buford v. Packet Co., 3 Mo.App. 159; 89 Mo. 611; Hammerslough v. Ass'n, 79 Mo. 80.

OPINION

Thomas, J.

This was a suit in equity to enjoin and restrain defendant William Fenwick from proceeding in an action of forcible detainer, instituted against plaintiff before Charles M. Hawley; and to declare the title in real estate mentioned in the petition in the plaintiff on the ground that it had been given to him by his father years before, and had been in his possession for more than ten years. The same pleadings admit that, in 1869, one Andrew Brownlee was the owner of the land described in the petition; that plaintiff is a son of said Andrew Brownlee, and that plaintiff and the defendants (except defendant Hawley) are the heirs and legal representatives of Andrew Brownlee, who died intestate in the year 1885; that defendant Hawley is a justice of the peace, and defendant Fenwick is the administrator of said Andrew Brownlee, and that an action of forcible detainer was begun by said Fenwick, as administrator, before defendant Hawley, as justice of the peace, against plaintiff for the recovery of the possession of the land in controversy and was pending at the time of the institution of this suit.

The petition charged that the agreement made in 1869, between plaintiff and Andrew Brownlee, was that, in consideration of plaintiff staying upon the farm and taking care of his father and mother during their lives, he should occupy the land and have full use of it during their lives, and at their death have full title to the land. The answer charges the agreement of 1869 to have been, that plaintiff should live with his father upon the land, and pay annually one-third of the crop as rent, Andrew furnishing the work stock, etc., and further charges that he did so live upon the land until 1880, when a different and new contract of lease of said farm was made and, from that time until the death of said Andrew Brownlee, plaintiff occupied the farm under that lease. A temporary injunction was granted plaintiff restraining further proceedings under the forcible detainer proceeding.

I. The daughters of decedent and their husbands were made defendants, and on the trial the husbands were permitted to testify over the objections of plaintiff. They were competent witnesses. They, having the right to possess and enjoy the property their wives inherited from their father, were not mere nominal but substantial parties to the suit, and, being such, they were competent witnesses in their own behalf. O'Bryan v. Allen, 95 Mo. 68, 8 S.W. 225, and cases cited.

Objection was also made to the competency of Patan Jones as a witness on behalf of defendants. He was the husband of a deceased daughter, and was not a party to the suit, but his children were. There can be no question but that he was a competent witness.

II. The trial resulted in a judgment for defendants and a dissolution of the temporary injunction. This judgment was justified by the evidence introduced by the plaintiff alone, and, when the evidence introduced by defendants is taken into the account, the plaintiff's alleged cause of action appears to be wholly devoid of merit.

The evidence on the part of plaintiff shows: That, in 1869, Andrew Brownlee, speaking to his wife, at the residence on the farm in controversy, and in the presence of plaintiff and witness, Victoria Brownlee, said: "I want Darwin (plaintiff) to stay at home and take care of his mother and me, and I intend him to have this piece of land;" that plaintiff had been married but a short time; that plaintiff was in possession of this land and remained in possession until the present time; that, in 1870, John Brownlee (a son of Andrew, and now deceased) asked his father to sell him five or six acres off the land in dispute to square him out, and that Andrew replied, saying, "The land is not mine; I have given it to Darwin;" -- this was said in the presence of witness, Matt Barnes; that in 1876 witness French applied to Andrew Brownlee to rent of him; that he said "the land belonged to Darwin, and he would have to go to him about it;" that said French did go to plaintiff and rented the land and paid plaintiff the rent; that in 1880, after Andrew Brownlee had conveyed all the land he ever owned except the land in dispute and a farm then occupied by his son John, he said to witness John Sweeny: "I have sold all the land I intend to sell; the balance belongs to the boys; the home place belongs to Darwin."

That near the same time Andrew Brownlee said to witness, Merideth Marmaduke, that the land in controversy belonged to plaintiff; that he also told witness Huston, who, as county assessor, called on him to make out his assessment list, that he had no land. The evidence further shows that, in the neighborhood in which this land was situated, it had been a matter of notoriety for twelve to fifteen years, that plaintiff was in possession of the land, claiming it as his own, and that it had been given him by his father. The evidence further showed that no rent and no part of the crop had ever been received or claimed by Andrew Brownlee from 1869 to the time of his death, except the year 1874, when a part of the crop was given him by the plaintiff.

The old man on one occasion, when counting his money and when asked what he was going to do with it said: "I want...