Gibbs v. Whitwell

• Decision Date: 12 June 1901
• Citation: 164 Mo. 387,64 S.W. 110
• Parties: GIBBS v. WHITWELL et al.
• Court: Missouri Supreme Court

64 S.W. 110

164 Mo. 387

GIBBS v. WHITWELL et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

SPECIFIC PERFORMANCE — AGREEMENT TO CONVEY LAND — PARTIAL PERFORMANCE — EVIDENCE — SUFFICIENCY.

Plaintiff and her husband took possession of a house on a farm owned by her father, remaining in possession for a long time, cultivated a portion of the farm, made some improvements, paid no rent previous to the father's death, and never paid any taxes. Previous to the father's death, he conveyed the farm

to his wife, who thereafter paid the taxes, rented the portion never occupied, and plaintiff and husband thereafter paid rent to her for several years. Plaintiff's father, in conversations with third persons, said that he had bought the farm for plaintiff, and was going to give the farm to plaintiff, concerning which such persons testified from memory. Held, in an action for specific performance, that the evidence showed that plaintiff and her husband did not take possession and make improvements thereon in reliance on a promise that it was given or to be given to them, and therefore they were not entitled to a conveyance of the land.

Appeal from Cape Girardeau court of common pleas; F. E. Burrough, Judge.

Suit by Elizabeth Gibbs against A. S. Whitwell and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

J. R. Young, for appellant. Wilson Cramer and J. B. Dennis, for respondents.

ROBINSON, J.

This is a proceeding in equity to obtain specific performance of a parol contract alleged to have been made between plaintiff and her father, W. H. Whitwell, deceased, in 1879, to convey a certain tract of land in Stoddard county, Mo., containing about 165 acres, known as the "Gin Farm." The plaintiff, who is the wife of Chase Gibbs, commenced this suit in the Stoddard circuit court on August 7, 1897, against the Whitwell heirs and grantees, claiming the land by virtue of a parol gift from her father. On application of M. A. Grissom, one of the defendants, the court changed the venue to the Cape Girardeau court of common pleas. Plaintiff predicates her right to recover in this case upon the allegation in her petition that the land in question formerly belonged to her father, who in December, 1879, put her and her husband in possession under a verbal agreement to the effect that, if she would move upon the land and make a home of the same, he would convey it to her; that in pursuance of said contract plaintiff and her husband moved upon the land, and made valuable and lasting improvements thereon; that her father failed to convey the same to her during his lifetime. The answer of defendants Rodney and Cramer averred that on March 13, 1887, W. H. Whitwell undertook and intended to convey the land in controversy to his wife, Mary J. Whitwell, and in pursuance of that purpose executed to one A. W. Hunt his deed of conveyance, which deed was duly recorded in the land records of Stoddard county, whereby he intended to convey the land to said Hunt, to be by him transferred to his wife, Mary J. Whitwell; that on June 27, 1887, Hunt, by warranty deed, duly executed and recorded, undertook and intended to convey the land to Mrs. Whitwell, who thereupon went into possession of the land thereunder, and occupied the same continuously up to the time of her death; that on August 11, 1894, Mrs. Whitwell executed a deed of trust thereon to Wilson Cramer, trustee for K. J. B. Dennis, to secure the payment of a promissory note for $1,000. The answer then avers that this note had been assigned by said Dennis to defendant Rodney, and that same remains due and unpaid, and that by mutual mistake and oversight between the parties thereto the land intended to be conveyed by the several conveyances above adverted to was in part erroneously described, and prayed for the correction of the error of description and a foreclosure of the deed of trust. The administrator of the estate of Mrs. Whitwell entered his voluntary appearance, and put in issue the matter set up in the answer by a general denial. The reply was a general denial. Upon the trial the court found for the defendants, dismissed the bill, and decreed the correction and reformation of description complained of, ascertained the amount due on the note secured by the deed of trust, and foreclosed the same. From this action of the trial court, plaintiff has appealed.

The principal question presented for determination here is whether the evidence is sufficient to establish the agreement alleged in the petition, and, if so, whether there was such performance of it on the part of the plaintiff as to take the case out of the operation of the statute of frauds, and justify a decree for specific performance. It is uniformly held by the appellate court of this state that a verbal contract for the sale of land should be established by competent proof that is clear, definite, and unequivocal in all its terms; that if the terms are uncertain or ambiguous, or not made out by satisfactory proof, a specific performance will not be decreed. The law on this subject is thus clearly expressed by Pomeroy in his excellent work on Specific Performance (section 108): "A plaintiff cannot, in the face of the statute, prove a verbal contract by parol evidence, and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or in his behalf which point unmistakably to a contract between himself and the defendant, which cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in the performance of a contract, and which would not have been done without an existing contract; and although these acts of part performance cannot, of themselves, indicate all the terms of the agreement sought to be enforced, they must be consistent with it and in conformity with its provisions, when these shall have been shown by the subsequent parol evidence. It follows from this invariable rule that acts which do not unmistakably point to a contract existing between the parties, or which can reasonably be accounted for in some other manner than as having been done in pursuance of such a contract, do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal contract has virtually been made between the parties." The rule is well settled that acts which are referable to something else than the verbal agreement, and which may ordinarily be otherwise accounted for, do not constitute a part performance of it.

It appears from the evidence introduced at the trial: That plaintiff's father, W. H. Whitwell, purchased the farm...