Hersman v. Hersman

• Decision Date: 06 December 1913
• Citation: 253 Mo. 175,161 S.W. 800
• Parties: HERSMAN et al. v. HERSMAN.
• Court: Missouri Supreme Court

161 S.W. 800

253 Mo. 175

HERSMAN et al. v. HERSMAN.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. SPECIFIC PERFORMANCE (§ 121) — ORAL CONTRACT TO CONVEY—SUFFICIENCY OF EVIDENCE.

To authorize a decree for specific performance of an oral contract to convey, upon proof of part performance, the contract to convey must be shown by evidence so clear and convincing as to leave no reasonable doubt of its existence and terms.

2. SPECIFIC PERFORMANCE (§ 51)—ORAL CONTRACT —CONSIDERATION.

To authorize a decree of specific performance of an oral contract to convey, where there

has been part performance, the consideration of the contract must have been fair.

3. SPECIFIC PERFORMANCE (§ 42)—ORAL CONTRACT —PART PERFORMANCE.

Acts claimed to have been done in part performance of an oral contract to convey must be referable only to the contract, and not explainable on any other theory than that they were done in part performance of the contract.

4. SPECIFIC PERFORMANCE (§ 121)—ACTIONS —SUFFICIENCY OF EVIDENCE.

Evidence, in a suit for specific performance of an oral contract to convey, held not to show that defendant promised to convey to plaintiff in consideration of services to be rendered by her to her and defendant's parents.

5. APPEAL AND ERROR (§ 1012)—FINDINGS— CONCLUSIVENESS.

Where the trial judge decided the case on a transcript taken before another judge and on depositions, and the only witness who testified orally did not testify as to the contract relied on, and none of the witnesses resided in the circuit over which the trial judge presided, he could not be presumed to be in a position to more advantageously weigh the evidence than the appellate court.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by Belle Hersman and another against Strauther G. Hersman. From a judgment for plaintiffs, defendant appeals. Reversed.

R. W. Beeson, of Red Oak, Iowa, and Guthrie & Franklin, of Macon, for appellant. A. W. Mullins, of Linneus, and F. E. Lindquist, of Kansas City, for respondents.

BLAIR, C.

Defendant is a brother of the plaintiffs, and appeals from a judgment of the circuit court of Macon county, devesting him of the title to a certain house and lot in Brookfield, Mo., and vesting it in plaintiff Belle Hersman. The original petition was filed August 15, 1907, in the circuit court of Linn county, whence the cause was taken to Macon county by change of venue, where it was heard in 1908 by a special judge. The cause was taken under advisement, and at the September term, 1908, the objection being made that the special judge's power ended with the term at which he heard the case, it was resubmitted by agreement, to the regular judge of the circuit, Hon. Nat M. Shelton, on the transcript of the evidence previously taken and some additional depositions and the oral testimony of one additional witness.

The amended petition on which the case was finally submitted was filed by leave, and to conform to the proof after the evidence had been heard by the special judge, and before the case was finally submitted to the regular judge.

Plaintiffs' amended petition, in substance, alleged that on the 18th day of August, 1898, plaintiffs were the owners in fee of a certain lot of ground in the city of Brookfield, Linn county, Mo. That while the title to said real estate was taken in the names of plaintiffs, $1,000 of the purchase price thereof, which was $1,600, was contributed by their mother, Mrs. Mary Hersman, and the remainder, $600, by the plaintiffs, each paying $300, and that, in fact, plaintiffs held said property in trust for the use and benefit of their mother. That on the 29th day of May, 1899, plaintiff Belle Hersman conveyed by warranty deed her interest in said real estate to her sister and coplaintiff, Mrs. Kittie M. Edwards, and that, while said deed recites a consideration of $2,000, in truth and in fact, the only consideration therefor was an agreement between them that Mrs. Edwards should take care of their father and mother, Michael M. and Mrs. Mary Hersman, and said Belle Hersman, during the remainder of their respective lives, all of which facts the defendant well knew. That on the 9th day of May, 1901, said Kittie M. Edwards and her husband, J. B. Edwards, by warranty deed, conveyed said real estate to the defendant, and that while the deed recites a consideration of $2,000, "the only cash consideration therefor was the sum of $500, about $400 of which had theretofore been paid out by said Kittie M. Edwards for repairs on the buildings and improvements situated on said premises, and the further stipulation and agreement that said defendant would well and truly care for said Michael M. Hersman and Mrs. Mary Hersman and the plaintiff Belle Hersman, support them, and let them occupy said property as long as they should live, and that, in consideration of the services to be rendered by said Belle Hersman, as hereinafter stated, said defendant would convey to or cause to be vested in said plaintiff, Belle Hersman, the title to said real estate and premises at the death of said Michael M. Hersman and Mary Hersman, and plaintiffs aver that the defendant acquired said property as aforesaid in trust for the use and benefit of said Michael M. Hersman and Mary Hersman and the plaintiff Belle Hersman, and to furnish support for them during their natural lives." That said Michael M. Hersman, on the ____ day of February, 1903, departed this life at the city of Brookfield. That at the time of the making and delivery of said deed to the defendant, said Mary Hersman, mother of plaintiffs and defendant, was suffering with nervous prostration, stomach trouble, and other ailments, and remained sick and under the care of physicians from said time up to the time of her death on the 10th day of June, 1907. That from the 29th day of May, 1901, up to the 10th day of June, 1907, defendant contributed about $25 a month towards the support of said Mary Hersman and Belle Hersman, and permitted them to use and occupy said premises, and that, at the time of the aforesaid conveyance of the property to defendant by plaintiff Kittie M. Edwards and her husband, it was agreed by and between plaintiff Belle Hersman and the defendant that she, the said Belle, "would nurse, care for, and wait upon said Michael M. Hersman and Mary Hersman while they lived, the defendant providing the maintenance for them, and for which defendant would make no charge, and at the death of said Michael M. Hersman and Mary Hersman said property should belong to and be vested in said plaintiff, Belle Hersman; and that said plaintiff faithfully fulfilled her said agreement, and in all respects discharged her said undertaking and the duties she assumed." That the defendant, wholly disregarding his undertaking in the premises, subsequent to the death of said Michael M. Hersman and Mary Hersman, and on the 5th day of October, 1907, made a voluntary conveyance of said real estate to his son-in-law, J. L. Miller, for the purpose of defrauding the said Belle, and depriving her of any redress in the premises, and has refused and still refuses to make her any compensation whatsoever. That defendant did not care for said Mary Hersman nor provide for her any nursing, except by said Belle Hersman, by reason whereof the said Belle was compelled to and did watch over, care for, and nurse the said Mary Hersman, day and night during all of said time and up to the time of her death. That, since the death of said Mary Hersman, said defendant has wholly failed and refused to in any way provide for said Belle Hersman, except permitting her to reside in and occupy the said premises. That the reasonable value of the services so rendered by said Belle Hersman from said 29th day of May, 1901, up to the time of the death of said Mary Hersman, June 10, 1907, a period of 2,201 days, is $2,201, and that defendant is indebted to the said Belle for said sum. That plaintiff Kittie M. Edwards says she claims no interest in the amount so claimed, but joins in the petition in order that right, equity, and justice may be done between said Belle Hersman and the defendant. That in equity and justice, said sum of $2,201, or such part thereof as does not exceed the value of said property, should be adjudged and decreed to be a lien on the aforesaid real estate for the amount so due, and said property sold to satisfy said lien. The prayer of the petition is, "that said Belle Hersman have and recover of and from the defendant the said sum of $2,201; that said amount be adjudged and decreed by order of this court to be a lien upon said above-described real estate; that said real estate be sold to satisfy said lien, and that the court may make such other and further orders, judgments, and decrees in the premises as may seem just."

Defendant's answer to the amended petition was a general denial.

In addition to vesting the title in plaintiff Belle Hersman, the court found against her demand for a money judgment, and found that plaintiff Kittie M. Edwards had no interest in the matter.

Michael M. and Mary Hersman, the parents of the parties hereto and six other living children, formerly lived in Illinois, where Mrs. Hersman owned a cottage which she sold in 1898, and $1,000 of the proceeds, together with $600, furnished in equal parts by plaintiffs, was invested in the property in suit, plaintiffs taking the title in their names, with the understanding that they were to care for their aged parents while they lived. In October, 1898, plaintiffs and their parents and the husband of plaintiff Kittie M. Edwards moved to the premises now involved, and lived there together, the support of this family devolving largely upon Mr. and Mrs. Edwards. On May 29, 1899, Belle Hersman, by general warranty deed, conveyed her interest in the property to her coplaintiff, Mrs. Edwards, the real consideration for the conveyance being, according to plaintiffs, the promise of...