Foster v. Kimmons

• Decision Date: 31 January 1874
• Parties: ELIZA FOSTER AND WILLIAM A. FOSTER, her husband, Appellants, v. ROBERT KIMMONS AND NANCY HANNAH KIMMONS, Respondents.
• Court: Missouri Supreme Court

54 Mo. 488

ELIZA FOSTER AND WILLIAM A. FOSTER, her husband, Appellants,

v.ROBERT KIMMONS AND NANCY HANNAH KIMMONS, Respondents.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Greene Circuit Court.

James F. Hardin, for Appellants.

I. Evidence can only be excluded for incompetence or irrelevance.

II. Where there is any evidence tending to prove the facts there must be a finding on the evidence. (The other points made are necessarily omitted not being considered by the court.)

Nathan Bray, for Respondents.

I. This contract being within the statute of frauds, every material fact in the petition in relation to the gift, and its terms, acceptance, and the possession, and improvements, under that gift must be proved so as to leave no room for reasonable doubt as to the facts relied on. (Johnson vs. Quarles, 46 Mo., 423; Baker vs. Vining, 30 Me., 121; Malin vs. Malin, 1 Wend., 625; Sewell vs. Baxter, 2 Md. Ch., 447; Hollida vs. Shoop, 4 Md., 465; Boyd vs. McLean, 1 Johns. Ch., 582; Enos vs. Hunter, 9 Ill., 211; 1 Sto. Eq. Jur., § 753.)

II. In such cases it is a proper practice to move to exclude the evidence and dismiss the bill.

III. There was no sufficient proof as to the identity of the land.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Lawrence Circuit Court, and afterwards moved to the Green Circuit Court by a change of the venue.

The action was brought to compel the specific performance of a parol gift of land, on the ground of part performance by the delivery of possession and valuable improvements made on the land.

The action was originally brought by the plaintiff, Eliza Kimmons, who afterwards intermarried with William S. Foster, after which the suit was prosecuted in their joint names.

The petition charges, that the defendant, Robert Kimmons, the father of Edward Y. Kimmons, gave the said Edward certain lands, which were described in the petition by metes and bounds, lying and being in Lawrence County, State of Missouri; that by virtue, and in pursuance, of said gift the said Edward took and continued in the possession of said land until the 23d day of August, 1858, at which time he died; that after said gift and before the death of said Edward, he made permanent and lasting improvements on said lands by clearing and fencing portions of the land and erecting buildings thereon to the value of five or six hundred dollars; that during all of this time he claimed and used the land as his own with the knowledge and consent of his father, Robert Kimmons; that plaintiff, Eliza, was the wife of said Edward at the time of his death, and said defendant, Nancy H. Kimmons, was the only child and heir of the said Edward and is now six years old; that the plaintiff, Eliza, as the widow of said Edward, elected under the statute of this State to take a child's part of the real estate of the deceased in lieu of other dower therein; that, shortly after the death of the said Edward, the said Robert Kimmons forcibly took possession of the said lands and still holds the same, and fails and refuses to convey the legal title of said land to said Eliza and defendant, Nancy H. Kimmons; that the said Robert Kimmons is destroying the timber on said land; and prays for a decree compelling the said Robert to convey the land to said Eliza and Nancy H., and for general relief.

A guardian ad litem was appointed for the infant defendant, who filed an answer asking the protection of the court for the infant.

The defendant, Robert Kimmons, by his answer denied the gift of the land to his son as charged, or that he ever took possession of the land in conformity to any supposed gift, or that said Edward made the improvements on the land as charged in the petition, but avers that the improvements on the land were made by said defendant, and that said Edward occupied the land by the permission of the defendant, and that he so occupied the land and worked the same for his own use as a compensation for work done by him in improving the same. The defendant denies, that the said Edward ever claimed the land as his own. The defendant further stated in his answer, that, since the commencement of the suit, he had for a valuable consideration sold and conveyed the land to one Isaac West, and that West had sold and conveyed to one Oliver P. Johnson, who was then in possession of the land, &c.

On the hearing of the cause it was proved by one R. B. Nicholas (who was the father of the plaintiff Eliza), that he had been well acquainted with the defendant, Robert Kimmons, for twenty years; that Edward Y. Kimmons and his brother Wash Kimmons, two of the defendant's sons, had each married a daughter of witness; that Edward Y. had been twice married, and that defendant, Nancy H., was the only child of his first wife; that his last wife had no children; that in the year 1855, and perhaps before the commencement of that year, the said Edward went upon and took possession of the land in controversy; that the land was then unimproved, except a small school house situated thereon; that Edward first moved into this school house in 1855, and continued in the exclusive possession of the land up to the time of his death in July, 1858; that, while he was in possession of the land, he made improvements in clearing and fencing land and in building a house thereon, to the value of from six to seven hundred dollars; that, during the time that he occupied the land, he claimed it as his own; that the defendant, Robert Kimmons, resided in one mile of the land, was frequently on the land, and saw Edward improving the same; that Edward married a daughter of the witness in the first part of the year 1858; that after this, witness was riding over the land in controversy with the defendant, Robert, when he told witness that he had given the land to his son, Edward Y., and pointed out to witness where he supposed one corner of the land was, and where he thought the line would run, near a tree to the other corner, and he remarked, that he had made a division of his land among his boys, that he had given the Chalybeate Spring tract to Edward (the land, on which Edward resided, was called the Chalybeate Spring tract); that, after he had given the land to Edward, he had moved on it, and worked hard in improving it, and that he must make him a deed to it, or something might happen to one of them and cause trouble; that the old man also stated, that the land given Edward was not as good for farming purposes as that given to his son Wash, (who had married another of witness' daughters) but that he thought the spring would make it equal in value; the witness further stated, that Robert Kimmons, in another conversation with witness at his...