Harris v. Morgan

• Decision Date: 16 June 1928
• Parties: HARRIS v. MORGAN et al.
• Court: Tennessee Supreme Court

7 S.W.2d 53

157 Tenn. 140

HARRIS v. MORGAN et al.

Supreme Court of Tennessee.

June 16, 1928

Appeal from Chancery Court, Davidson County; John R. Aust Chancellor.

Suit by Mrs. Annie Morgan Harris against J. Wade Morgan and others. Decree sustaining a demurrer to the bill, and complainant appeals. Reversed and remanded.

Wm Hume and Wm. M. Greene, both of Nashville, for appellant.

John C Blackwell and Harry A. Luck, both of Nashville, for appellees.

SWIGGART J.

The chancellor sustained a demurrer interposed by the defendants to the original bill, to the extent of holding that the original bill was founded upon an oral contract for the sale of lands, within the application of the fourth section of the statute of frauds. Shannon's Code (all editions) § 3142. In all others respects the demurrer was overruled, and a discretionary appeal was allowed to this court.

The facts stated in the bill, and admitted by the demurrer, are substantially as follows. The complainant is a daughter of Elijah Morgan, who died in 1912. Prior to 1904, Elijah Morgan was part owner with the defendants, his brother and two sisters, of certain real estate described in the bill, on which the four brothers and sisters resided. This real estate was operated jointly by the four, and all of the property, both real and personal, together with the income therefrom, was held and used jointly in community of interest. Elijah Morgan was the youngest of the four, and he alone was married. He and his family lived with the three defendants for many years. It appearing to the four that it would be desirable to hold all said property intact until the death of the survivor, and Elijah Morgan being the only one of the four with direct descendants, the four brothers and sisters entered into an oral agreement that each would make his or her will and provide therein that all his or her property should be used and enjoyed by the surviving brothers and sisters until the death of the last survivor, upon which event the property would be divided among the children of Elijah Morgan. Pursuant to said agreement, each of the four made such a will. All of the wills were executed on February 15, 1904, at the same time and place, and were witnessed by the same witnesses. No reference was made in any of the wills to the agreement or to the other wills. One of the subscribing witnesses to each of the wills is still living. Elijah Morgan died in 1912. His will, executed as aforesaid, was duly probated, and the three defendants had had the use and enjoyment of his interest in said property under the provisions of his will, for a period of about 16 years, until the filing of the bill. The youngest of the defendants is now 79 years of age, and the oldest is 90. The agreement, pursuant to which the four wills were executed, was respected and observed by the defendants until within a few months prior to the filing of the bill, when they declared their intention of revoking said wills and making other disposition of their property.

The bill charges that the making of the parol agreement, and the subsequent execution of the wills, was a completed transaction, affirmed by the silence and inaction of the defendants until after the death of Elijah Morgan and by their acceptance of the benefits conferred upon them by the will of Elijah Morgan for more than 16 years after his death. The bill charges that to permit the defendants now to revoke their said mutual wills, contrary to their agreement with complainant's father, would violate equity and good morals; and it is averred that by reason of the premises the entire joint property and estate of the defendants is clothed with a trust in favor of complainant and the others in like situation who have not hitherto disposed of their interest as remaindermen.

The bill prays for a specific performance of the agreement made by Elijah Morgan with the defendants, for the benefit of complainant and her brothers and sisters, and for an injunction restraining the defendants from making other and different disposition of their property, and for the declaration of a trust, and for general relief.

In Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 6 L. R. A. (N. S.) 703, 8 Ann. Cas. 112, it was shown that the complainant, at the solicitation of his aunt, abandoned lucrative employment and entered into her service upon an agreement that she would execute a last will, giving to him a farm in Maury county, Tenn., together with the personal property located thereon. Complainant faithfully performed the service required, to the satisfaction of his aunt, and when she died without discharging her obligation complainant filed his bill for a specific performance, with an alternative prayer seeking the value of the services he had rendered. This court held that the contract could not be enforced. The court said:

"The contract relied upon was one resting in parol, and was therefore unenforceable. It is true, as insisted by complainant's counsel, that the weight of authority, English and American, is that part performance of a contract under the conditions disclosed in this record, will take the contract out of the operation of the statute of frauds; but as early as Patton v. McClure, Mart. & Y. 333, it was held that partial performance of a parol contract for the sale and conveyance of land would not relieve from the application of the statute. This rule then established has since been applied in a great number of cases, so that it may now be regarded as a rule of property in this state."

In Starnes v. Hatcher, 121 Tenn. 330, 117 S.W. 219, it was held by this court that a contract, properly evidenced by writing, as required by the statute of frauds, whereby a person agrees to make a will in a certain way, or to devise property to a certain beneficiary, is valid and binding, and may be specifically enforced.

Cases dealing with such contracts in other jurisdictions are so frequently controlled in their disposition by the prevailing rule that the statute of frauds may not be interposed as a defense to a contract against one who has fully performed the contract on his part that little assistance may be derived therefrom in the application of our statute and rules of procedure to the case at hand.

The situation disclosed by the bill is unusual, and calls for a consideration of the principle underlying the statute of frauds, rather than for a mere application of precedents.

Parol contracts for the sale or disposition of land are not void, as against public policy, but are only voidable at the instance of the person against whom such a contract is invoked. Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360; Choate v. Sewell, 142 Tenn. 487, 221 S.W. 190.

Of the nature and character of the writing necessary to be proven, when the statute of frauds is invoked, this court, in Lee v. Cherry, 85 Tenn. 707, 708, 4 S.W. 835, 4 Am. St. Rep. 800, said:

"It is not essential that the contract of sale shall be in writing, provided there is produced a writing containing the terms of the oral contract, and authenticated by the signature of the party to be charged. The language of the fourth section of the statute is: 'Unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized."'

And of the purpose and reason of the statute of frauds this court, in Whitby v. Whitby, 36 Tenn. (4 Sneed) 473, 478, said:

"It obviously was designed to protect the owners of land from being drawn into hasty or inconsiderate agreements in relation to what is deemed the more valuable and important species of property, and to guard against misunderstanding as to the nature and extent of such agreements; and hence the provision that the owner should not be divested of his title except by evidence in writing, signed by himself. This in substance is the letter and spirit of the statute. The same policy dictated the enactment that the sale of slaves should be evidenced by writing.

We think it clear that the consideration is not to be regarded, in construing the statute, as part of the contract, but merely as inducement to it. And therefore no principle of the law is violated by the admission of parol evidence of the consideration, whenever it becomes necessary to be shown."

If the will executed by each of the three defendants be regarded as a note or memorandum of the contract with which he or she is sought to be charged, the fact that it fails to recite that it was executed in consideration of the execution of a similar will by each of the other three brothers and sisters, cannot be material, in view of the rule in Whitby v. Whitby, supra, and repeated in subsequent cases, that the writing relied upon to establish the contract need not recite the consideration, but the consideration may be proved by parol evidence.

It is, however, necessary that the fact that a contract was made and its terms be evidenced by a writing, signed by the person to be charged. Sheid v. Stamps, 34 Tenn. (2 Sneed) 172.

In determining whether the written will of each of the three defendants evidences the fact that a contract had been entered into by such defendant with his or her brothers and sisters, whereby the will of each was written and executed it seems to us proper to consider the circumstances under which each of the four wills was prepared and executed, as disclosed by the averments of the original bill. Looking to these circumstances it appears that the four wills were executed simultaneously, at the same place, and were witnessed by the same persons. They manifest a joint purpose, which could not be consummated except through the...