Hayes v. Kansas City, Ft. S. & G.R. Co.

• Decision Date: 02 March 1892
• Parties: Hays, Appellant, v. The Kansas City, Fort Scott & Gulf Railroad Company
• Court: Missouri Supreme Court

18 S.W. 1115

108 Mo. 544

Hays, Appellant, v. The Kansas City, Fort Scott & Gulf Railroad Company

Supreme Court of Missouri, Second Division

March 2, 1892

Appeal from Webster Circuit Court. -- Hon. W. I. Wallace, Judge.

Affirmed.

T. J Delaney for appellant.

(1) The defendant is not entitled to a decree of specific performance, because the evidence relied upon to establish the parol contract set up in answer is not of such character as will warrant the decree. Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Paris v. Healey, 61 Mo. 453; Mastin v Halley, 61 Mo. 196; Tedford v. Trimble, 87 Mo 226; Vieth v. Gierth, 92 Mo. 97; Strange v. Crowley, 91 Mo. 287; Lapham v. Dreisvogt, 36 Mo.App. 275. (2) If the parol contract relied upon is established by clear and convincing testimony, there is no evidence of possession taken thereunder, or improvements made thereon such as is necessary to entitle defendant to specific performance. Parke v. Leewright, 20 Mo. 85; Spaulding v. Gonzleman, 30 Mo. 177; Underwood v. Underwood, 46 Mo. 527; Sitton v. Ship, 65 Mo. 297; Ellis v. Railroad, 51 Mo. 200; Cullegan v. Wingerter, 57 Mo. 250; Lydick v. Holland, 83 Mo. 703; Emmel v. Hayes, 102 Mo. 186. (3) Damages will compensate defendants for the money expended on the land, and the decree should have been for damages. Holland v. Anderson, 38 Mo. 55; Hamilton v. Hamilton, 59 Mo. 232. (4) Refused instruction, numbered 3, should have been given. See cases cited under point 2, especially Emmel v. Hays, 102 Mo. 186. (5) Ejectment will lie, and the second instruction given is erroneous. Walker v. Railroad, 57 Mo. 257; Armstrong v. City, 69 Mo. 309; Bradley v. Railroad, 91 Mo. 493; Evans v. Railroad, 64 Mo. 453.

Wallace Pratt and J. C. Cravens for respondent.

(1) This record presents simply questions of fact, which under proper declarations of law were determined in favor of the defendant. And the court's findings are fully sustained by the evidence. There is, therefore, nothing for this court to review. (2) A verbal contract to convey land followed by a delivery or change of possession will always take the case out of the statute of frauds. And specific performance will be enforced. Much more is this true where the vendee has fully performed his part of the contract, and has made lasting and valuable improvements on the land. Johnson v. McGruder, 15 Mo. 365; Despain v. Carter, 21 Mo. 331; Young v. Montgomery, 28 Mo. 604; Townsend v. Hawkins, 45 Mo. 286; Dickerson v. Chrisman, 28 Mo. 134; Anderson v. Scott, 94 Mo. 637; Dougherty v. Harsell, 91 Mo. 161; Anderson v. Shockley, 82 Mo. 250. (3) Even if there was no direct evidence of a contract to convey in this case the fact that the plaintiff stood by and saw the defendant making valuable improvements on the land under a claim of ownership, and actually directed defendant's superintendent, Diggins, where the line between him and the company was, which the defendant then accepted as correct and acted upon it in improving the property -- this fact alone works an equitable estoppel against the plaintiff from thereafter claiming the land. Chouteau v. Goddin, 39 Mo. 229; St. Louis v. Gas Co., 70 Mo. 99; Garnhart v. Finney, 40 Mo. 449; Baker v. Vanderburg, 99 Mo. 378; Bunce v. Beck, 46 Mo. 327. (4) Even if there were no contract, verbal or written, which the defendant was entitled to have specifically performed, and nothing in the evidence operating as an equitable estoppel of the plaintiff in this case, still he could not maintain ejectment against the railroad company for land occupied by its track and as a right of way constructed with his knowledge and consent. Baker v. Railroad, 57 Mo. 265; Provolt v. Railroad, 57 Mo. 256; Gray v. Railroad, 81 Mo. 132; Kanaga v. Railroad, 76 Mo. 207; McClellan v. Railroad, 103 Mo. 295.

OPINION

Macfarlane, J.

The suit was ejectment to recover a lot of land in Springfield, Missouri, on which were located two sidetracks of defendant, and near to which were defendant's depots. The lot sued for and described in the petition was one hundred feet wide fronting on the west side of Main street, and one hundred and fifty feet in length. One of the defendant's sidetracks was within two feet of the south side of this lot. And the other was about seventy-five feet north of the first.

The defense was that the Springfield & Western Missouri Railway Company, defendant's grantor, had taken possession of the property under a verbal contract with plaintiff by which he agreed to convey the land to said company in consideration that it would "locate upon said parcel of ground and the lands adjacent thereto their main track of railroad, switches, depot buildings, engine-house or houses, turntables, etc., and to use and occupy said grounds in the said manner and for the said purpose of a general depot in the city of Springfield and for the further and especial consideration that said Springfield & Western Missouri Railroad Company do locate and place a switch from their main track on the south side thereof along the south part of said lot of ground hereinafter described, running east and west and immediately on the south line of said tract so that lots adjoining said tract hereinbefore described on the south, owned by said plaintiff, may abut said switch."

It averred further that said company fully complied with all the terms and conditions of said contract, and that thereafter defendant became the owner of all the property rights and franchises of said company including the equitable right and title to said land. The answer further averred that defendant was in possession of said property under and by virtue of said contract, had made valuable and expensive improvements thereon, and prayed for affirmative relief.

On the trial it was admitted that defendant became the owner of all the franchises, rights, property and effects of the Springfield & Western Missouri Railroad Company, including the equitable title, if any, of said company, in and to the parcel of ground in controversy, and that defendant was in possession thereof.

We think there is no doubt that the verbal contract to convey the lot was clearly established by evidence sufficient to justify the finding on that proposition.

The principal contention on the part of plaintiff is that the contract, being within the statute of frauds, a sufficient part performance had not been shown to free it from that statute. It appears without dispute that plaintiff Hays owned the tract consisting of about two hundred and twenty-five feet front on the west side of Main street. In 1878 the railroad was built through Springfield, the main track running east and west some two hundred and twenty feet north of plaintiff's, and a sidetrack had been built over the north side of this land about parallel to the main track. It does not appear under what contract or agreement this sidetrack was built. None was shown. In 1879 the contract in question was made. B. U. Massey who represented the railroad testified: "Mr. Hays agreed if the railroad company would extend the south switch, and would build their new depot on the ground of Phelps and of Leftwicks, or on adjacent lands, and would maintain them there, that he would give the railroad the land lying north of this south switch (and including the south switch) up to the middle of the branch, and he would make them a deed as soon as the switch was constructed. As soon as the switch was constructed I prepared the deed. (Deed here shown.) I think this...