Cooper v. Colson

• Decision Date: 20 June 1904
• Citation: 58 A. 337,66 N.J.E. 328
• Parties: COOPER v. COLSON et al.
• Court: New Jersey Supreme Court

58 A. 337

66 N.J.E. 328

COOPER

v. COLSON et al.

Court of Errors and Appeals of New Jersey.

June 20, 1904.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Action by Margaret A. Cooper against Edwin Colson and others. Judgment for plaintiff, and defendants appeal. Reversed.

Enoch S. Fogg and David J. Pancoast, for appellants.

I. O. & J. W. Acton, for respondent.

FORT, J. This is a suit in equity for specific performance of an alleged contract for the devise of lands. The bill is filed against the heirs at law of Joseph P. Colson, who died intestate leaving three farms in the county of Salem, in this state. The bill states the alleged agreement to have been "that if your oratrix would continue to live with him [Colson] and act as his housekeeper, to serve him and look after his interests, as she had done, he would compensate her fully and completely; that he would 'leave' her a farm. By which words your oratrix charges that said Joseph P. Colson meant, and did intend for your oratrix to understand, that he would make and execute his last will and testament, and would therein, in due form of law, devise to her a farm." The prayer of the bill is that the heirs at law be decreed "to convey to your oratrix, her heirs and assigns, the farm and plantation of which the said Joseph P. Colson died seised, and hereinbefore particularly described and set forth, known as the 'Peterson Farm.'" The answer denies the agreement as alleged in the bill, or any other agreement of like character. The proof shows, I think, that the agreement was made, and that Colson frequently stated that he did intend to leave to the complainant the Peterson farm, or that the Peterson farm was hers, or similar statements which clearly indicate that a parol agreement was made to devise, in consideration of the labor and services of the complainant, the Peterson farm to her.

By our act "for the prevention of frauds and perjuries," approved March 27, 1874, it is provided "that no action shall be brought upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them unless the agreement upon which such action shall be brought or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." 2 Gen. St. p. 1603, § 5. An agreement to convey or devise lands wholly in parol is unenforceable at law. It is equally so in equity, unless there has been a partial or full performance in certain respects, in which case such an agreement may be specifically enforced by a court of equity notwithstanding the statute of frauds. The authorities to sustain this principle of equitable jurisdiction are collected and fully stated in note 2 to section 1409 of Pomeroy's Equity Jurisprudence, vol. 3, p. 456. The complainant in this case relies upon a partial or complete performance of the contract alleged, to sustain her prayer for specific performance. That the complainant did act as housekeeper, and attend upon and care for Colson, and did perform her part of the agreement in this regard, is proven; and if such a performance of her agreement to serve the deceased can be considered part performance, within the rule which permits equity to decree specific performance of contracts for the conveyance or devise of lands, she is entitled to such a decree in this case.

Stated plainly, the agreement proven in this case was to convey or devise to complainant the Peterson farm in consideration of her paying Colson, as the purchase price for the same, her labor and personal service as his housekeeper and attendant for so long a period as he should live. Payment of a part or even the whole of the purchase money is not an act of part performance to take a contract out of the statute of frauds. Fry on Specific Performance (4th Ed.) §§ 613, 614; Snell's Principles of Equity, p. 464, par. 4; Pomeroy on Specific Performance of Contracts, § 112, p. 159: Lippincott v. Bridgewater, 55 N. J. Eq. 208, 36 Atl. 672; Green v. Richards, 23 N. J. Eq. 32; Browne on Statute of Frauds (5th Ed.) § 461; Cochrane v. McEntee (N. J. Ch.) 51 Atl. 279 (Emery, V. C.); Brown v. Brown, 33 N. J. Eq. 650, 600; Am. & Eng. Ency. of Law, vol. 26 (2d Ed.) p. 54.

In every case, in order to take the case out of the statute on the ground of part performance, irrespective of other questions, two things are requisite: The terms of the contract must be established by the proofs to be clear, definite, and unequivocal, and the acts relied on as part performance must be exclusively referable to the contract. Wallace v. Brown, 10 N. J. Eq. 308; Brown v. Brown, 33 N. J. Eq. 650. Prof. Pomeroy, in a note at page 457, vol. 3, of his work on Equity Jurisprudence, declares among the acts which do not constitute part performance the "payment of the purchase price in whole or in part," and states that the rule is otherwise in the state of Iowa, owing to a statute which expressly makes such payment a part performance. This same learned author gives two acts which he characterizes as controlling acts of part performance which will take a parol agreement of sale out of the statute, and permit a court of equity to decree specific performance thereof, namely: (a) Actual, open possession; (b) permanent and valuable improvement made on the land, or these two combined. Pomeroy's Equity Jurisprudence, vol. 3, p. 457, § 1409.

But in this case it is contended that in the absence of possession taken, or any permanent improvement made upon the property, there are other special acts of personal service, and the like, which, when performed upon condition that land will be conveyed, will also entitle the party so performing to a decree for the specific performance of a parol agreement to convey lands. Three cases decided in the Court of Chancery in this state are relied upon by the complainant to sustain this contention. The first of these is Johnson v. Hubbell, 10 N. J. Eq. 332, 64 Am. Dec. 773, decided by Chancellor Williamson in 1855. The second is Van Duyne v. Vreeland, 12 N. J. Eq. 142, also a decision of Chancellor Williamson. The third is Davison v. Davison, 13 N. J. Eq. 240, decided by Chancellor Green. I shall not attempt a review of these cases. Johnson v. Hubbell and Davison v. Davison are not in all respects in point under the issue here, but Van...