Harlan v. Harlan

• Decision Date: 06 October 1897
• Citation: 102 Iowa 701,72 N.W. 286
• Parties: HARLAN v. HARLAN ET AL.
• Court: Iowa Supreme Court

102 Iowa 701

72 N.W. 286

HARLAN

v.HARLAN ET AL.

Supreme Court of Iowa.

Oct. 6, 1897.

Appeal from district court, Clarke county; H. M. Towner, Judge.

George Harlan was owner, in his lifetime, of the S. E. 1/4 of section 27 and the N. 1/2 of the N. W. 1/4 of the N. E. 1/4 of section 34, all in township 73 N., of range 25 W. of the fifth P. M., and upon his death his will was admitted to probate, devising the land to his wife during her lifetime, and thereafter to Jerome Harlan during his lifetime, and upon the death of said Jerome to his other sons, Valentine and Jacob, share and share alike. Julia Harlan, the wife, died September 17, 1888, and Jerome Harlan March 15, 1894. The plaintiff, Valentine, asks that the land be partitioned. The defendant, Jacob, answers that he and plaintiff entered into an agreement by the terms of which defendant was to care for and keep Jerome, who was feeble-minded, during life, which he did, and in consideration therefor plaintiff agreed to convey his interest in the land to the defendant. In the cross petition he asks that plaintiff be required to perform his part of the contract. Decree was entered as prayed by defendant, and plaintiff appeals. Affirmed.Temple & Hardinger, for appellant.

Tallman & Crist and McIntire Bros. & Jamison, for appellees.

LADD, J.

It is conceded in argument that Jerome Harlan was entitled to the use of the land in controversy while he lived, and that the remainder belonged to plaintiff and defendant share and share alike. Jerome was feebleminded and helpless, and could not talk, walk, or feed himself, dress or undress, or attend unaided to nature's calls. Upon the death of his mother, in 1888, the plaintiff became his guardian, and at once entered into an arrangement with the defendant, under which the latter kept and cared for Jerome from September 17, 1888, one year, and the plaintiff the year following, and so on alternately. The brother, when caring for Jerome, received four dollars per week for doing so, though this appears to have been inadequate as compensation. Valentine and his wife went to Jacob's home September 17, 1893, in order to remove Jerome, as, under the arrangement, they were required to care for him the following year. While there, Valentine proposed that if Jacob would care for Jerome as long as he lived, Jacob might have the farm, and Valentine would convey to him his interest therein. That this proposition was made is undisputed. That it was accepted and acted upon by the parties is very clearly and satisfactorily established by the evidence. Valentine and his wife say that the acceptance was conditional upon Jacob's staying at home, and assisting in the care of Jerome. But Valentine admitted to at least six different witnesses having made the contract, while Jacob and his wife testify that they accepted the proposition, and that Jerome was left with them, and cared for, in pursuance thereof.

2. The plaintiff insists that the agreement is within the statute of frauds prohibiting the admission of oral evidence “for the creation or transfer of any interest in lands, except leases for a term not exceeding one year.” Code 1873, § 3664. This does not apply, however, “where the purchase money, or any portion thereof, has been received by the vendor.” Id. § 3665. The term “purchase money” means the consideration paid, and may be property or labor performed. Devin v. Himer, 29 Iowa, 297;Stem v. Nysonger, 69 Iowa, 512, 29 N. W. 433. The board was furnished and the labor performed in strict compliance with the agreement. That Jerome lived only a few months, instead of many years, was a contingency without doubt considered in making the contract. Having entered into the agreement to convey the land if defendant cared for his brother till the happening of an uncertain event,--i. e. the brother's death,--the plaintiff will not be relieved from fulfilling it, because this event occurred sooner than he anticipated. Having received all the consideration he bargained for, he will not, in the absence of fraud, be heard to complain. Whitefield v. McLeod, 1 Am. Dec. 269;Smock v. Pierson, 34 Am. Rep. 269.

3. It is said the oral promise to pay for the care of Jerome was within the statute of frauds, as its purport was to answer for the debt of another. But Jerome was non compos mentis,--incapable of making a contract or of incurring indebtedness. Nor is it claimed he attempted so to do. The theory of plaintiff seems to be that, as his estate was chargeable with the expense of his care and maintenance, a promise to pay therefor by him is within the statute. No expense had been incurred for the...