Emmel v. Hayes

• Decision Date: 30 June 1890
• Citation: 14 S.W. 209,102 Mo. 186
• Parties: EMMEL et al. v. HAYES et al.
• Court: Missouri Supreme Court

14 S.W. 209

102 Mo. 186

EMMEL et al. v. HAYES et al.

Supreme Court of Missouri.

June 30, 1890.

SPECIFIC PERFORMANCE — PAROL CONTRACT — PART PERFORMANCE — STATUTE OF FRAUDS — TRANSACTIONS WITH DECEDENT.

1. In order to prove a parol contract to convey land, acts of part performance must first be proved which unmistakably point to a contract between the parties, or which cannot be reasonably accounted for in any other manner than as having been done in pursuance of such a contract; and where land has been sold on execution, and a sheriff's deed taken, the mere retention of the land by the execution debtor is not such an act of part performance as will take out of the statute of frauds a contract of the grantee in the sheriff's deed to convey to the execution debtor. Overruling Simmons v. Headlee, 94 Mo. 482, 7 S. W. Rep. 20, and Emmel v. Headlee, 7 S. W. Rep. 22.

2. In an action for specific performance by the execution debtor, the grantee in the sheriff's deed being dead, testimony of the execution debtor as to improvements made by him after the alleged parol purchase was properly excluded.

Appeal from circuit court, Greene county; JAMES R. VAUGHN, Judge.

An equitable proceeding to remove a cloud upon title caused by a deed of trust alleged to have been fraudulently made, and for the recovery of the following described land: W. ½ of N. E. ¼ section 36, township 31, range 21; and S. E. ¼ of N. E. ¼ section 36, township 31, range 21; and the undivided one-half tract in N. E. ¼ of N. E. ¼ section 36, township 31, range 21. The answer was a general denial, etc., with a count for specific performance. The other issues raised by the pleadings will be found hereafter, as submitted to and settled by the verdict of the jury, to which such issues were sent for determination. The testimony in this cause in relation to the count for specific performance is in substance the same as it was in Simmons v. Headlee, 94 Mo. 482, 7 S. W. Rep. 20, which, being an action of ejectment, the equitable claim and defense of specific performance was set up. The statement of that evidence, as copied from that case, is the following: "John O'Day was introduced as a witness by defendants, and in substance testified that he, in conjunction with his brother, T. K. O'Day, were the attorneys of defendant, O'Callahan, in a replevin suit in which he was plaintiff and Leander Sells was defendant; that on the trial a part of the property in controversy was found to belong to O'Callahan, and a part to Sells, for which each respectively recovered judgment against the other, as well as a proportionate part of the costs; that execution was issued against the respective parties; that, under the execution issued against Sells, his land was sold at the November term, 1881, of the circuit court of Greene county, and was purchased by said T. K. O'Day for $35; that, under an execution which issued on the judgment in Sells' favor against O'Callahan, the land in question was sold on the 3d of December, 1881, and said P. T. Simmons became the purchaser for $25. The witness further stated that after these sales had been made the firm of John O'Day & Bro., representing O'Callahan, and said Simmons of the law firm of Simmons & Hubbard, met for the purpose of settling matters between O'Callahan and Sells growing out of these and other judgments; that in the negotiations he advanced for O'Callahan $500 to pay a judgment against him in favor of Phebe O'Callahan, also some money to pay to F. Emmel; that in the settlement it was agreed that T. K. O'Day should not take a deed for the land of Sells, which he had bought at said execution sale, and that said P. T. Simmons should convey or release to O'Callahan whatever title he might have acquired to his land under the sheriff's deed, on the payment of the amount of Sells' judgment against him, which amount was paid to said Simmons, and said T. K. O'Day did not take a sheriff's deed to the land of said Sells which he had bought at the execution sale. He further testified that the settlement was a final one, each man to retain his own lands, as if there had been no sale; that is, Sells and O'Callahan." The evidence in this case, as in the one referred to, shows that P. T. Simmons, the ancestor of the minor plaintiffs, for whose benefit this proceeding was instituted, had acquired the title to the property in controversy by reason of a sheriff's sale of the land, as that of Thomas O'Callahan, under an execution issued against him in favor of Leander Sells. A sheriff's deed in pursuance of this sale was duly made to said Simmons, December 3, 1881, and put to record the 27th of that month; the judgment of Sells, under which the sale occurred, having been assigned to Simmons and Hubbard. The issues of fact heretofore mentioned were submitted by the court to the jury as follows: (1) Was O'Callahan indebted to Hayes in the sum of $3,000 when the deed of trust was executed by O'Callahan to Thomas K. O'Day for James Hayes? (2) Was said deed of trust executed wholly or in part to deceive and defraud purchasers at execution sales of said land under judgments against O'Callahan? (3) Was the deed of trust in evidence by Thomas O'Callahan to Thomas K. O'Day, trustee for James Hayes, and the agreement in evidence executed by James Hayes to Thomas O'Callahan during his natural life, executed in good faith by said parties for the purpose therein stated? (4) Was the defendant O'Callahan threatened with executions at the time of the execution of deed of trust in evidence? (5) Was it the intention, when said deed of trust was executed, of the parties thereto that said land should be preserved thereby for the use and benefit of O'Callahan, the grantor? (6) Did Thomas O'Callahan, or his attorney, during the life-time of Phillip T. Simmons, make a settlement with said Simmons to pay said Simmons certain sums of money on condition that said Simmons was to release to said O'Callahan the land purchased by said Simmons on execution sales against said O'Callahan? The jury returned their verdict on said interrogatories and issues submitted as follows, to-wit: "We, the jury, find, in answer to first interrogatory, `No.' We, the jury, find, in answer to second interrogatory, `Yes.' We, the jury, find, in answer to third interrogatory, `No.' We, the jury, find, in answer to fourth interrogatory, `Yes.' We, the jury, find, in answer to the fifth interrogatory, `Yes.' We, the jury, find, in answer to the sixth interrogatory, `Yes.'" These findings of fact by the jury were adopted by the court, and resulted in a judgment for the plaintiffs, from which the defendants appeal.

C. W. Thrasher and F. D. Hefferman, for appellants. Goode & Cravens, for respondents.

SHERWOOD, J., (after stating the facts as above.)

1. The controlling question in this cause, and the one to which our chief attention will be directed, is whether, upon the evidence adduced, the defendant O'Callahan was entitled to a decree for specific performance. The taking possession of a tract of land by a vendee under a parol contract made by a vendor to convey to him, and with the consent of such vendor, will take the case out of the statute of frauds, and authorize compulsory specific performance only where such taking of possession is pursuant to, and referable solely to, the parol contract. Nothing short of this unequivocal act of taking possession will suffice. This doctrine is of almost universal prevalence, and announced in cases too numerous for mention or of ready computation. It has obtained in this state since the earliest period of its history down to the present time, as the following cases will show: Bean v. Valle, 2 Mo. 126; Parke v. Leewright, 20 Mo. 85; Charpiot v. Sigerson, 25 Mo. 63; Wiley v. Robert, 31 Mo. 212; Ells v. Railroad, 51 Mo. 200; Spalding v. Conzelman, 30 Mo. 177; Bowles v. Wathan, 54 Mo. 261; Sitton v. Ship, 65 Mo. 297. And these cases are in accord with all well-considered cases elsewhere. This is abundantly shown by the authorities cited by counsel for plaintiffs. The uniform statement of the text-writers, and the reported rulings of adjudged cases, is that mere continuance of possession does not constitute part performance. There must be a radical change in the attitude of the contracting parties towards each other; a change consisting of acts done; a notorious change, which itself indicates that some contract has been made between the parties; and then parol evidence is admissible to show the details of the agreement. 1 Wood, Landl. & Ten. (2d Ed.) 374, and cases cited; Browne, St. Frauds, (2d Ed.) §§ 455, 457, 472, 473, 477. In the last section cited the learned author says: "It is abundantly settled that if one who is already in possession...