Hubbard v. Hubbard
| Decision Date | 22 June 1897 |
| Citation | 41 S.W. 749,140 Mo. 300 |
| Parties | Hubbard, Appellant, v. Hubbard et al |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
H. S Booth and W. H. Kennan for appellant.
(1) In order to take a case out of the statute of frauds upon the ground of part performance of a parol contract, it is not only indispensable that the acts done should be clear and definite and inferable exclusively to the contract, but the contract should also be established by competent proofs to be clear, definite and unequivocal in all its terms. 1 Story Eq. Jur. [12 Ed.], sec. 764; Berry v. Hartzell, 91 Mo. 137; Rogers v. Wolfe, 104 Mo. 2; Brownlee v Fenwick, 103 Mo. 421; Anderson v. Scott, 94 Mo. 637; Underwood v. Ib., 48 Mo. 527; Sitton v. Shipp, 65 Mo. 297. (2) The possession by a son of land belonging to his father, even when accompanied by valuable improvement, will not be treated as a part performance, because the relations between the parties prevent the inference which would otherwise arise from the fact and remove all the necessity of accounting for the possession by the supposition of existing contracts. Pomeroy, Spec. Perf. [1 Ed.], sec. 116. (3) So long as the obligation rests upon the promise of the donor, he may revoke it, and equity will not compel a performance. Anderson v. Scott, 94 Mo. 637; Brownlee v. Fenwick, 103 Mo. 421.
George Robertson for respondents.
(1) There was sufficient part performance to entitle the defendants to a deed, and a decree in their favor is proper. Anderson v. Scott, 94 Mo. 637; Emmel v. Hayes, 102 Mo. 186; Hays v. Railroad, 108 Mo. 554; Hiatt v. Williams, 72 Mo. 214; Gupton v. Gupton, 47 Mo. 37; Despain v. Carter, 21 Mo. 331; 3 Pom. Eq. Juris. [2 Ed.], sec. 1409; Cuttler v. Babcock, 81 Wis. 195; Ryan v. Dox, 34 N.Y. 307; Poland v. O'Connor, 1 Neb. 50; Moss v. Culver, 64 Pa. St. 414.
The suit is ejectment to recover eighty acres of land in Audrain county. Defendant by way of equitable defense alleges that she is the widow of Edgar Hubbard deceased, who was a son of plaintiff. That her husband died July 8, 1894, leaving her, his widow, and one child surviving him; that subsequent to his death in August, 1894, there was born of her marriage with said deceased another child, of both of whom she is guardian and curator.
She further alleges that the land formerly belonged to plaintiff, who, in 1887, put her and her husband in possession thereof, under a verbal agreement to the effect that if they would live upon and improve it he would convey it to his son, defendant's said husband. That in pursuance of said contract and thereunder, they went into the possession of the land and in full compliance therewith made lasting and valuable improvements thereon. That plaintiff had neglected to convey the land to deceased during his lifetime, as agreed, and now neglects to convey the same to her and the children of herself and deceased. Defendant, representing herself and children, prayed specific performance of the contract.
Upon the evidence introduced at the trial the court found for defendant upon the equitable defense, and by decree vested the title in the children subject to dower and homestead of defendant. Plaintiff appeals. The questions, and the only questions in the case, are, whether the agreement alleged in the answer was made by plaintiff to his son Edgar, and if so, whether there was such a performance of it, on the part of the latter, as dispenses with the writing made necessary by the Statute of Frauds, and authorizes a decree of specific performance.
The evidence leaves no doubt that defendant's husband took possession of the land and made valuable and lasting improvements thereon under some kind of an agreement with his father, by which he was permitted to occupy and use it without the payment of rent. If he was placed in possession under promise of a gift of the land, and in reliance thereon made the improvements, then defendant is entitled to a decree for the execution of the gift. The improvements made upon the land constitute a sufficient consideration for the promise, and defendant "stands before a court of equity in the attitude of a purchaser and with equal rights and remedies." Dozier v. Matson, 94 Mo. 328, 7 S.W. 268.
The only question in the case therefore is whether the evidence is sufficient to establish the promise relied upon by defendant.
The Statute of Frauds was intended to prevent "the introduction of loose and indeterminate proof of what ought to be established by solemn written contracts," and the rule is therefore everywhere recognized that a verbal contract for the sale of land, or a promise to give land, should be Rogers v. Wolfe, 104 Mo. 1, 14 S.W. 805, and cases cited.
It may be said in the first place that possession by the son of land belonging to the father, without payment of rent, does not authorize the inference that the possession is held under a contract of sale or a promise to give. Such possession is entirely consistent with a mere license to occupy the land, rent free, and would naturally be referred to it.
Defendant offers no direct proof of the promise relied upon. It consists wholly of declarations and admissions made by plaintiff in conversations with third persons and detailed by witnesses from memory. While proof of such statements may be so convincing as to establish the contract, yet this kind of evidence is ever regarded as most unsatisfactory, "especially when considering family disputes." In such case the contract can only be inferred from what was said and the evidence can not have the convincing effect required to establish such contracts unless, taking what is said in connection with all the circumstances, no other inference can be fairly drawn therefrom.
It appears from the evidence that the family of plaintiff was living on the home place, and his sons John and Edgar with their wives were, and had been, living with him on the same farm. This farm plaintiff rented to others and his two sons moved upon other land belonging to him, Edgar upon the tract in controversy. This he occupied and cultivated until his death in 1894, paying no rent, but making and repairing the improvements at a cost of something like one half the rental value of the land. It is very evident from these circumstances that plaintiff intended to do something to assist in establishing his son in business and to make his own way in life, yet they are equally as consistent with a simple license to occupy and cultivate the farm as with a promise to give it to him.
But the evidence shows very conclusively that something more than a mere license was intended by the father and relied upon by the son. The evidence of plaintiff's witnesses, who undertook to give the terms of the agreement under which possession was taken, shows that the father expressed a hope that he would be able, at some future time, to give his son the land. Was, then, the possession taken and improvements made under a promise to give, or in consideration of the use of the land with the expectation that it would be given in the future? The entire evidence bearing directly on the question we here insert.
Julia Hubbard, wife of John Hubbard, who is a son of plaintiff, is the only witness who undertakes to testify directly to the agreement under which Edgar went into possession of the land. She testified: "We were all living on the home place and Mr. Hubbard had rented it out to another man, and Edgar Hubbard asked his father if he might move on the Turner farm, this 80 acre tract, and he told him he might, and told him to go on it and improve it and pay the taxes, he would charge him no rents, but not to let the improvements exceed the rents, and he hoped some day to be able to give it to him."
Plaintiff read in evidence the sworn assessment lists made by Edgar Hubbard for years 1890, 1891, 1892 and 1893. These purported to contain a true and correct statement of all taxable property belonging to said Edgar during those years and no real estate was included. He also read the tax receipts for the same years. According to these receipts the taxes on this land were paid by plaintiff. The evidence shows that in 1888 Edgar Hubbard was put in possession of the land by plaintiff and that he continued in possession until his death in 1894 without payment of rent. The annual rental value of the land was about $ 200. The evidence also shows that while in possession he built an addition to the dwelling...
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