Henrikson v. Henrikson

• Decision Date: 04 October 1910
• Citation: 143 Wis. 314,127 N.W. 962
• Parties: HENRIKSON v. HENRIKSON.
• Court: Wisconsin Supreme Court

143 Wis. 314

127 N.W. 962

HENRIKSON

v.HENRIKSON.

Supreme Court of Wisconsin.

Oct. 4, 1910.

Appeal from Circuit Court, Pierce County; E. W. Helms, Judge.

Action by Rasmus N. Henrikson against C. J. Henrikson. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

This action was brought to enforce specific performance of an oral contract to convey real estate. After certain admissions and denials, the defendant set up affirmatively a general settlement and satisfaction of all matters of difference between the parties, including matters set forth in the complaint, and that the plaintiff accepted $1 and other valuable consideration in satisfaction and discharge of all causes of action, suits or controversies, claims and demands against the defendant. The facts sufficiently appear from the findings.

The court found: That on or about May 12, 1901, Paul C. Henrikson, the father of plaintiff and defendant, died intestate at the town of Gilman, county of Pierce, and at the time of his death was the owner in fee simple of the lands described in the complaint. At the time of his death said Paul left him surviving his widow, then 68 years of age, and eight children, including the parties hereto, all of whom were of full age and competent, except Hannah Henrikson, now about 56 years of age, blind from infancy and mentally undeveloped, and Soren Henrikson now about 35 years of age, who is also mentally incompetent. On the day Paul C. Henrikson died, the dwelling house upon the premises described in the complaint was totally destroyed by fire, and the members of the family then at home were left without a house in which to live. The family residing on the farm at that time consisted of the widow of Paul C. Henrikson and the said Hannah and Soren. After the burning of the dwelling house, the premises described in the complaint were worth about $2,000, and there was some personal property upon the farm, the value of which was not shown, and money belonging to said Paul to the amount of $700. After the death of said Paul and the burning of said dwelling a consultation was had between the widow and various of the children of the family, and it was arranged that the widow and Hannah and Soren should live temporarily in the granary upon said farm, and some talk was had as to the construction of a new house upon the premises. It seems to have been agreed among the children that the widow and said Hannah and Soren should remain upon the farm, and some provisions should be made for the maintenance of them upon the farm, being the premises described in the complaint. A few days after the said 12th day of May, 1901, the defendant, then being a storekeeper in a village in Dunn county, had a conversation with the plaintiff, who was a farmer in Dunn county, at that time living and boarding with the defendant, concerning the rebuilding of a house upon the farm above mentioned, and making provision for their mother and the incompetent children. As a result of said conversation, it was agreed between plaintiff and defendant that the plaintiff should go to Pierce county and provide upon the farm a comfortable and convenient home for the mother of the parties and the family remaining upon the farm; it being understood that the $700 then on hand should be used in the building of a house upon said premises, and that plaintiff should put in time and money and labor with said $700 sufficient to make a comfortable and convenient home for the family, and in consideration of the performance on the part of the plaintiff of said agreement the defendant promised on his part that, when the mother was dead, he would transfer to the plaintiff his one-eighth share in said farm as a remuneration to the plaintiff for the things to be done and performed by said plaintiff under said agreement, but no part of said agreement was ever reduced to writing. Thereafter, and during the summer of 1901, the plaintiff caused to be built upon said farm a good and substantial dwelling house; the $700 above mentioned being expended toward the building of said house and the plaintiff doing a considerable amount of labor by way of digging the basement, hauling material with his team, and otherwise, probably spending two months or more in said work, although the matter is left somewhat indefinite by the testimony. In addition to the labor so expended, plaintiff purchased several hundred dollars' worth of material which was used in the construction of said house, probably more than $500, although the testimony is quite indefinite as to the exact amount. In the summer of 1902 plaintiff spent considerable time and money in constructing an additional cistern upon the premises, and bought and erected a windmill, all at considerable expense of time and money. On the 16th day of April, 1908, the widow died, and thereafter plaintiff demanded of defendant that he convey to plaintiff his share in said farm, being one-eighth thereof; but this the defendant refused to do. No demand has ever been made by plaintiff of the defendant, except as above, for any remuneration for his services performed by plaintiff pursuant to said agreement in or about the erection of said house, cistern, or windmill, or for repayment to plaintiff of any sum expended by him in connection therewith. On or about the 17th day of January, 1905, a settlement was had between plaintiff and defendant of certain differences then existing between them, and the plaintiff made and signed and delivered to defendant a writing to that effect; but the materials furnished and services performed in making the improvements in question were not considered or taken into account or settled for in said settlement, nor was the transfer of defendant's interest to the plaintiff on account of said improvements considered or settled. That after the death of said Paul C. Henrikson the widow remained in full and complete possession of the premises described in the complaint up to the time of her death, and the plaintiff, between the 12th day of May, 1901, and the beginning of this suit, never in any manner occupied the farm or buildings thereon, and never had possession thereof during the time he worked upon said farm in the construction of the house and other improvements mentioned in these findings. During said period he simply lived as a member of his mother's family in the same way as is ordinarily done by any person employed to do work of the kind he was doing.

The court concluded that the contract between plaintiff and defendant was void, because it was not in writing, and that there was never any such part performance on the part of plaintiff as would entitle him to specific performance of the contract. Judgment was ordered against the plaintiff for dismissal of the complaint, with costs. Judgment was entered accordingly, from which this appeal was taken.

N. O. Varnum, for appellant.

Warren P. Knowles, for respondent.

KERWIN, J. (after stating the facts as above).

The question presented is whether, upon the established facts, the plaintiff is entitled to specific performance of the oral contract set out in the case. It is settled by the findings, and not denied, that the defendant agreed orally with the plaintiff to convey to plaintiff his one-eighth interest in the real estate described in the complaint, upon the death of the mother of plaintiff and defendant, in consideration of the erection on said real estate of certain permanent improvements and furnishing the material and doing the work necessary therefor; that plaintiff performed and furnished in accordance with such agreement, and duly performed all the conditions of such agreement on his part to be performed; that, after the death of the mother, defendant refused to convey to plaintiff. The contention on the part of the respondent is that, although the appellant fully performed on his part in pursuance of the contract, he cannot compel specific performance, because he did not take possession, and has an adequate remedy at law. The general rule is that part performance by the purchaser under an oral agreement to convey is not sufficient to take the contract out of the statute of frauds, unless possession is taken by such purchaser. The general rule has often been laid down by this court. Smith v. Finch et al., 8 Wis. 245;Brandeis v. Neustadtl, 13 Wis. 142;Ellis v. Cary, 74 Wis. 176, 42 N. W. 252, 4 L. R. A. 55, 17 Am. St. Rep. 125;Blanchard v. McDougal, 6 Wis. 167, 70 Am. Dec. 458;Koch et al. v. Williams et al., 82 Wis. 186, 52 N. W. 257;Popp v. Swanke et al., 68 Wis. 364, 31 N. W. 916;Harney et al. v. Burhans, 91 Wis. 348, 64 N. W. 1031;Horn v. Ludington, 32 Wis. 73. In the above and similar cases it will be seen that the purchaser, or party complaining because of failure to carry out the oral agreement, could be restored to his former position in an action at law. In other words, equity will not enforce an oral agreement, where possession has not been taken, though partly or even fully performed by one party, because he has an adequate remedy at law.

It is true strong language is used in some of the cases in stating the general rule, to the effect that part or even full performance of an oral contract to convey real estate by the purchaser is not sufficient, without possession on the part of the purchaser. As, for example, in Popp v. Swanke, supra, 68 Wis., at page 368, 31 N. W. 916, quoting from Smith v. Finch et al., 8 Wis. 245, the court said: “It is only in cases where the defendant would be enabled to practice a fraud upon the complainant unless the contract is specifically executed that a court of equity will interfere. If the purchaser has gone into possession of the land, so as to render him liable as a trespasser if the agreement is held void, the court will enforce performance.” But it is also true that there is another class of cases, resting upon the well-settled doctrine that where there is performance or...