Hart v. Dick, KCD

• Decision Date: 28 August 1978
• Docket Number: No. KCD,KCD
• Citation: 570 S.W.2d 820
• Parties: Thomas A. HART, Joseph W. Hart, Samatha Barbara Wellbrock, Laura Disselkoen, Lois Hart, and Sarah Andrews and Herbert C. Willbrand, as Administrator of the Estate of William S. Hamilton, Deceased, Plaintiffs-Appellants, v. Elva DICK, Defendant-Respondent. 29440.
• Court: Missouri Court of Appeals

Page 820

570 S.W.2d 820

Thomas A. HART, Joseph W. Hart, Samatha Barbara Wellbrock,

Laura Disselkoen, Lois Hart, and Sarah Andrews and Herbert

C. Willbrand, as Administrator of the Estate of William S.

Hamilton, Deceased, Plaintiffs-Appellants, v. Elva DICK, Defendant-Respondent.

No. KCD 29440.

Missouri Court of Appeals, Kansas City District.

Aug. 28, 1978.

Scott O. Wright, Brown, Wright, Willbrand & Simon, Columbia, for plaintiffs-appellants.

Hampton Tisdale, Tisdale & Abele, Boonville, for defendant-respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

TURNAGE, Judge.

Plaintiffs, as the heirs at law of William S. Hamilton, filed an ejectment suit against Elva Dick. Elva responded with a counterclaim in which she requested specific performance of an oral contract for the purchase of the land involved. The court found against the plaintiffs on their action for ejectment and in favor of Elva on her counterclaim and decreed specific performance of the contract for sale.

On this appeal the plaintiffs contend the claim for specific performance is barred by the statute of limitations because such claim was not brought within ten years from the date the deed was to have been delivered. Affirmed.

The land in dispute was owned by Wathena H. Long. On her death title vested in her brother, William S. Hamilton, and a sister. The sister later conveyed her one-half interest to Hamilton so that Hamilton eventually obtained complete ownership. Wathena died in 1954, and in 1958 Hamilton, a lawyer and resident of Kentucky, visited Cooper County in connection with the administration of her estate. While in Missouri, Hamilton became acquainted with Herman Dick and his wife, Elva. During this visit Hamilton entered into an oral agreement with Herman to sell him the land for $2,500. The deed was to be delivered after Wathena's estate was closed. Under this agreement Herman was to take possession of the land, farm it, pay the taxes, and consider and treat it as his own until the deed was delivered.

After Hamilton returned to Kentucky he wrote Herman and his wife, Elva, a series of letters. The letters confirmed the oral agreement and authorized Herman to use the land as if he already had a deed. Herman entered into possession and later had a banker write Hamilton that the purchase price was available and would be paid as soon as merchantable title was delivered.

In December, 1961, Hamilton wrote Herman that Wathena's estate had been finally wound up, the order of final distribution entered and title vested solely in him. Herman also wrote, "I will write you later about making my deed to you. In the meantime, use the land as your own. At first you told me you wanted the deed made to you and your son. Later you had changed your mind. You might tell me now to whom you want the deed made when I can get around to making it. . . ."

Plaintiffs did not dispute the existence of the contract of sale or the fact that Herman and his wife took possession of the land in December, 1959, and remained in possession until the present suit was filed on October 30, 1974. By the time suit was filed, Hamilton and Herman Dick had both died. It was further undisputed that Herman had paid all taxes on the land...