Collins v. Harrell

• Decision Date: 03 July 1908
• Citation: 219 Mo. 279,118 S.W. 432
• Parties: COLLINS et al. v. HARRELL et al.
• Court: Missouri Supreme Court

118 S.W. 432

219 Mo. 279

COLLINS et al. v. HARRELL et al.

Supreme Court of Missouri.

July 3, 1908.

1. JURY (§ 14)—RIGHT TO TRIAL BY—EQUITABLE ISSUES.

Where an interplea and answer in partition stated a cause of action for specific performance, a jury trial was properly refused.

2. SPECIFIC PERFORMANCE (§ 121) — CONTRACTS ENFORCEABLE — PAROL CONTRACT — EVIDENCE — SUFFICIENCY.

Where a court of equity is called upon to establish and enforce a parol contract to convey real estate, the proof of the contract must be clear and convincing.

3. SPECIFIC PERFORMANCE (§ 28)—CONTRACTS ENFORCEABLE—CERTAINTY—NECESSITY.

A contract must be definite and specific in order to be specifically enforced.

4. SPECIFIC PERFORMANCE (§ 28)—CONTRACTS ENFORCEABLE—CERTAINTY.

A statement that, if a child would stay with the party making it, he would see that she had plenty, give her clothing and educate her, and her assent thereto, falls far short of such a promise to convey to her a particular tract of land as can be specifically enforced.

5. APPEAL AND ERROR (§ 1009)—REVIEW— QUESTIONS OF FACT—FINDINGS OF CHANCELLOR.

Though in an equity case the Supreme Court may examine and weigh the evidence, it will defer largely to the judgment of the chancellor.

6. SPECIFIC PERFORMANCE (§ 64)—CONTRACTS ENFORCEABLE.

A statement, in a general conversation, that the party making it had made up his mind to give a child a particular tract of land if she would stay with him, does not amount to a contract to convey, capable of being specifically enforced, but is no more than a declaration of an intention subject to change or abandonment.

7. EVIDENCE (§ 313) — DECLARATIONS—CONCLUSIVENESS.

Evidence of declarations of a decedent, though admissible, does not amount to direct proof of the facts claimed to have been admitted by the declarations, and, when unsupported by other evidence, is entitled to but little weight.

8. SPECIFIC PERFORMANCE (§ 42)—CONTRACTS ENFORCEABLE—ORAL CONTRACT—PART PERFORMANCE.

Part performance of a parol contract to convey real estate must be unequivocal and referable alone to the contract to warrant specific performance.

9. SPECIFIC PERFORMANCE (§ 121)—EVIDENCE —SUFFICIENCY.

Evidence, in an action to compel specific performance of an alleged parol contract by a decedent to convey to a child a particular farm if she would stay with him, held not to establish the contract.

10. SPECIFIC PERFORMANCE (§ 121) — EVIDENCE—SUFFICIENCY.

Evidence, in an action to compel specific performance of an alleged parol contract by a decedent to convey real estate, held to show that decedent only contemplated deeding the real estate in question to plaintiff as a voluntary gift, prompted by affection for her, and not because of any contract obligating him to do so.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Schuyler County; Nat. M. Shelton, Judge.

Action by Thomas F. Collins and another against Iowa Harrell and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Henry C. Taylor and C. C. Fogle, for appellants. Payne & Sowers and Higbee & Mills, for respondents.

GANTT, J.

This is a suit to partition 152 acres of land in Schuyler county and 80 acres of land in Macon county, Mo. The suit was brought in Schuyler county circuit court. The plaintiffs and the defendants are the collateral kindred of Caleb Collins, who died intestate without widow or issue, in Davis county, Iowa, on August 11, 1905, in which last-mentioned county he owned at the time of his death about 500 acres of land. At the trial the defendants Albert Collins, Ira Collins, James Collins, Edward Collins, and Sarah Gibson filed a joint answer disclaiming any interest in the land in suit. Iowa Harrell, a minor, on motion of her guardian, was made a defendant and filed a separate answer claiming title to the 152 acres of land in Schuyler county, and known in the record as the "Queen City farm," by virtue of an alleged oral contract entered into by and between her and Caleb Collins in his lifetime in the summer of 1898, when she was less than nine years old, to the effect that if she, the said defendant, would live with him, the said Caleb Collins, stay with him, and comfort him until his death, he would give, transfer, and convey to her all of the said Schuyler county land above described in consideration therefor; that she accepted said proposition on the part of Caleb Collins and contracted and agreed with the said Caleb Collins to live with him, to stay with him, and comfort him until his death, and, in pursuance of said agreement, she did live with him and stay and comfort the said Caleb Collins from the time the said agreement was entered into until his death, and fully performed the said agreement on her part; that the said Caleb Collins died August 11, 1905, by reason of which said contract and the performance thereof by the defendant the said real estate situated in Schuyler county, Mo., was owned absolutely by this defendant; that the said Caleb Collins failed and neglected to keep his part of said contract prior to his death, and failed to convey, transfer, or deed said land to this defendant; and that the plaintiffs herein and the other defendants have no interest in said land. Wherefore she prayed the court for a decree declaring her to be the absolute owner of said real estate and to divest all the title and interest of the plaintiffs and the other defendants in and to said tract of land in Schuyler county, Mo. Thomas R. Hollingsworth, a minor, by his guardian ad litem, prayed the court to strictly protect his interest. The plaintiffs, in reply to the answer of Iowa Harrell, denied all of the allegations therein, and for further reply stated that the alleged pretended promise and contract of the said Caleb Collins pleaded in said defendant's answer to give, transfer, and convey the said land to the said defendant, if ever made, was not in writing, signed by Caleb Collins.

The case was tried at the November term, 1905, without the intervention of a jury, though the defendant and interpleader, Iowa Harrell, demanded a jury. As her interplea and answer stated a cause in equity for the specific performance of an alleged contract, the issue was not triable before a jury, and the court properly refused a jury. To sustain her claim to the land in question, the defendant introduced her mother, Mrs Maggie Harrell, who testified that she was 46 years old, and that the defendant Iowa was her only child. The witness was married in March, 1878. Iowa Harrell was born in 1889. Caleb Collins married the sister of the witness, and the witness lived with Mr. and Mrs. Collins until witness was married in 1878. Dr. Harrell died in 1890. After the death of her husband, the witness and the defendant Iowa went to the home of the deceased, Caleb Collins, where they continued to reside as members of the family until the death of Mrs. Collins in 1898, save and except a portion of that time witness was away settling up her husband's business. In April, 1902, after Mrs. Collins' death, the witness bought a small hotel at Leroy, Kan., took her goods and moved there, taking the defendant Iowa with her for the purpose of giving her a better education and getting her into better society. Witness was for a time a stenographer in a lawyer's office, but her health failed, and she and her daughter returned to the Collins' home in Iowa, where they made their home until the latter's death in 1905. During all of this period Caleb Collins gave them a home, clothed and gave them half of the produce, and cared for them and sent Iowa to school and paid their medical bills. Caleb Collins became greatly attached to Iowa, and on frequent occasions remarked that he intended doing something for her, and on several occasions stated that he intended to give her the Queen City farm. Mrs. Collins died August 24, 1898, and it was on this day that the alleged contract upon which defendant claims the land in suit was entered into. At that time she was less than nine years old. From that day until Caleb Collins' death, some seven years later, Mrs. Harrell made her home with him, except the short time she resided in Kansas. She could recall but four conversations with him wherein he mentioned giving Iowa the Queen City farm. The first of these conversations occurred on the day of her sister's funeral in the yard of Mr. Collins' residence. She and her brother Zeke and his wife and Caleb Collins were standing in the yard talking. Iowa was playing with her cousins. Thereupon the witness, Mrs. Harrell, said to Iowa, "We will get our things and go home with brother Zeke and make our home." Mr. Collins said, "No." Iowa was in the yard, and he went up to her and said, "You are not going to leave me now in my bereavement and leave me here alone," and he began to cry, and the little girl sympathized with him. She ran to him and put her hands in his hands, and he said: "No, Iowa, stay with me, and I will school and educate you and give you all your clothes. You live with me, and I will see that you have plenty." And then Iowa put her hands in his and said, "I am going to stay with Uncle," and then the two went off in the house together. On cross-examination she gave this version of that conversation, speaking of Mr. Collins: "Cale said: `You are not going to leave me now when I am in so much trouble. She is all I have got.'" On redirect examination she stated it in this way, "Cale said, if Babe stayed with him until he died, he had made up his mind to give her the Queen City farm."

Mrs. Ezekiel Dooley, the wife of Mrs. Harrell's brother, detailed this conversation in this way: "I remember Mr. Collins came up and said to her, she was not going to leave him, and commenced to cry. The little girl went up to him and took him by the hands, and he said: `Babe, you are not going to leave me? You are all I have got now.' He talked on, and said, if she would stay, he would always see that she...