Denevan v. Belter

• Decision Date: 22 December 1925
• Docket Number: No. 43.,43.
• Citation: 232 Mich. 664,206 N.W. 500
• Parties: DENEVAN et ux. v. BELTER et al.
• Court: Michigan Supreme Court

232 Mich. 664

206 N.W. 500

DENEVAN et ux.

v.BELTER et al.

No. 43.

Supreme Court of Michigan.

Dec. 22, 1925.

Appeal from Circuit Court, Montcalm County, in Chancery; Royal A. Hawley, Judge.

Bill by Lester Denevan and wife against Estina Belter and others. From a decree for plaintiffs, defendants appeal. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.D. Hale Brake, of Stanton, for appellants.

Griswold & Ganton, of Greenville, for appellees.

CLARK, J.

Plaintiffs had decree for specific performance of an oral agreement to convey. Defendants, appealing, contend:

‘(1) That the making of any such contract as that alleged was not proved with the degree of certainty required in such cases.

‘(2) That the acts of performance alleged and relied upon to take the case out of the statute of frauds do not, with sufficient certainty and exclusiveness, point to the alleged contract.’

Frederica Haise lived alone on a 40-acre farm in Montcalm county. She was ‘seventy some’ years old. Her husband had been dead 8 years. She had no children. She had a brother and two sisters living in Michigan. There had been other brothers, and perhaps sisters, of whom nothing had been heard since the known members of the family left Germany about 40 years ago.

Mrs. Haise owned 20 acres of the farm in her own right. Her husband had had the title to the other 20 acres. There had been no administration of his estate, being the 20 acres. Mrs. Haise was entitled by inheritance to a third of such estate; the remainder belonging to children of Mr. Haise by a former marriage. Such children asserted no rights in the land during the life of Mrs. Haise.

Her land, including the distributive share, was appraised at about $2,300, and her personal property at about $3,500. She owed practically nothing.

Plaintiff, Leta Denevan, was a granddaughter of a sister of Mrs. Haise. The other plaintiff is her husband. At the time in question they had been married about one year. It is established clearly on the record that Mrs. Haise was, and for years had been, fond of Mrs. Denevan, and that for a long time before her death she had desired and intended that at her death her property should go to Mrs. Denevan.

In the fall or early winter of 1923, an oral agreement was made between Mrs. Haise and the plaintiffs, by which plaintiffs left their home, and with some goods and equipment moved to the farm and lived in the farmhouse with Mrs. Haise. In behalf of plaintiffs, it is claimed that the agreement was that they would care for and support Mrs. Haise while she lived, work the farm, give her annually a part of the products, and in return therefor all of her property was to go and belong to Mrs. Denevan. Mrs. Haise died intestate a few months later. Mrs. Denevan sought conveyances from the heirs, but was unable to get title in that manner. At the instance of heirs, an administrator was appointed. Plaintiffs filed this bill making the administrator and the heirs, as far as known, defendants.

Witnesses for defendants, more numerous than for plaintiffs, gave testimony based chiefly on claimed declarations or admissions of plaintiffs themselves, tending to show that the agreement in question was to work the farm on shares and nothing more.

Plaintiffs, not disputing that there was a share agreement, in support of their further claim had testimony some of which we quote.

Mrs. Denevan's father testified of a conversation with Mrs. Haise:

‘Q. She say anything about how long Leta was going to stay? A. She said she was going to stay with her all the time and take care of her.

‘Q. Was that all she said about it? A. She said if she stayed with her she was going to give her the property she had.

‘Q. When was such conversations? A. The first I knew of it was along in October.

‘Q. In 1923? A. Yes, sir.’

A brother-in-law of Mrs. Denevan testified of another conversation with Mrs. Haise.

‘Q. Was there anything said about the terms and conditions upon which Lester and Leta were living there with her? A. Yes, sir.

‘Q. What did she say about that? A. She said they were going to stay with her.

‘Q. They were going to stay with her? A. Yes, sir.

‘Q. How long? A. All the while.

‘Q. What did she say about her property? A. She said they were to have it.

‘Q. Have it all? A. Yes, sir.

‘Q. What were they to do besides stay? A. They were to care for her.

‘Q. Care for her, and they were to have all her property? A. Yes, sir.’

Mrs. Louisa Haling, 82 years of age, sister of Mrs. Haise, grandmother of Mrs. Denevan, testified. We quote a part as to a conversation with her sister:

‘Q. Whether or not she told you that Leta was going to stay with her all the while? A. She said she gave her the place; she gave her everything she had.

‘Q. Just listen to this question, Did Mrs. Haise tell you Leta was coming to stay with her for good? A. Yes.

‘Q. Did she tell you that? A. Yes; she said so, She say, ‘Leta take care of me as long as I live, I give her everything.’'

1. We recognize the rule that a contract such as is claimed must be established by clear and convincing evidence. It is also true that evidence to establish such contracts generally consists, in chief, of declarations made by the deceased to third persons, which evidence is regarded as weak and unsatisfactory, and it must be scrutinized with care. 36 Cyc. 692.

Appellants say that this court, by a quotation found in Kinney v. Kinney, 220 Mich. 311, at page 316, 189 N. W. 897, is committed to the further rule that such a contract can be established only by the testimony of disinterested witnesses, and that plaintiffs' witnesses are interested because related to Mrs. Denevan.

If that be the rule, we think it does not apply to the witnesses whose testimony has been quoted. An interested witness is one who has a pecuniary interest, having prospect of gain or loss. State v. Easterlin, 61 S. C. 71, 39 S. E. 250; 3 Words and Phrases, 2104. Of course, the relation of the witness to the parties is to be considered as regards credibility. The trial judge had these rules in mind when, in an opinion filed, he reviewed the evidence and found for plaintiffs. He had the advantage...