McCune v. Graves
| Decision Date | 04 March 1918 |
| Parties | OKE McCUNE and VER McCUNE COBB, Appellants, v. CHARLES H. GRAVES |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. -- Hon. W. T. Ragland, Judge.
Affirmed.
David H. Eby and Ben E. Hulse for appellants.
(1) The title to real estate should not be permitted to slumber in the uncertainty of oral contracts to convey. A parol contract to convey real estate is an exception engrafted by courts of equity on the Statute of Frauds which requires all such contracts to be in writing. The evidence in this case is not of such a character as to touch the conscience of the court and call into play the exception to the statute. To warrant specific performance of an oral contract to convey real estate, such as the contract in suit, the proof must leave no reasonable doubt that the contract was made. Johnson v Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Berry v. Hartzell, 91 Mo. 132; Veth v Gierth, 92 Mo. 97; Cherbonnier v. Cherbonnier, 108 Mo. 252; Fanning v. Doan, 139 Mo. 392; Kinney v. Murray, 170 Mo. 674; McKee v Higbee, 180 Mo. 263; Russell v. Sharp, 192 Mo. 270; Kirk v. Middlebrook, 201 Mo. 245; Wales v. Holden, 209 Mo. 552; Collins v. Harrell, 219 Mo. 279; Forrister v. Sullivan, 231 Mo. 345; Oliver v. Johnson, 238 Mo. 359; Walker v. Bohannan, 243 Mo. 119; Hersman v. Hersman, 253 Mo. 175; Wanger v. Marr, 257 Mo. 482. (2) The defendant has wholly failed to meet and perform the terms of the parol agreement set up in his answer and upon which he relies. The execution of the deed, dated August 22, 1908, by the Kraft heirs to defendant and said Jennie E. Graves, is in no respect a compliance with the terms of the alleged contract, and the defendant has no ground of complaint if a court of equity leaves him in the position in which he has placed himself and refuses to compel the other party to perform. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Pomeroy v. Fullerton, 131 Mo. 581; Hollman v. Conlon, 143 Mo. 369; Real Est. Co. v. Spelbrink, 211 Mo. 671; McQuary v. Land Co., 230 Mo. 342; Munyon v. Hartman, 262 Mo. 449; Ranck v. Wickwire, 255 Mo. 42; Curtis v. Sexton, 142 Mo.App. 179; Taylor v. Longworth, 14 Peters (U.S.), 174; Holgate v. Eaton, 116 U.S. 40; People v. Bldg. Co., 92 N.Y. 98.
J. O. Allison and E. L. Alford for respondent.
The oral contract which respondent asks to be specifically enforced was proven beyond doubt. The trial court could reach no other conclusion than that to refuse respondent equitable relief would be to permit a fraud to be perpetrated on him. The evidence in support of the contract fully measures up to the most rigid requirements ever announced in this jurisdiction in cases where an oral contract for the sale of land was sought to be enforced. Merrill v. Thompson, 252 Mo. 714; Healey v. Simpson, 113 Mo. 340; School District v. Holt, 226 Mo. 406; West v. Bundy, 78 Mo. 407; Daugherty v. Hortsel, 91 Mo. 161; White v. Ingram, 110 Mo. 474; Hall v. Harris, 145 Mo. 614; Hubbard v. Hubbard, 140 Mo. 300; Bond v. Read, 131 Mo. 558; Webb v. Toms, 86 Mo. 591; McQuitty v. Wilhite, 247 Mo. 163; Whitaker v. Lewis, 264 Mo. 208. In each of the cases cited by appellant the evidence in support of the oral contract was weak and unsatisfactory as compared with the evidence in support of the contract under consideration. In some of these cases there was a sharp conflict in the evidence. In others the acts relied upon to establish performance on the part of complainant were not referable to the alleged contract, and in such cases the decisions turned on this point. In still other cases so cited the contract as proven was indefinite as to what particular property was to be conveyed and, of course, specific performance could not be decreed. In several of the cases the evidence consisted solely of the loosest of declarations and admissions made by one deceased, and made from twenty-five to forty years before the trial, and unsupported by corroborating actions, facts or circumstances. The appellate court will defer somewhat to the conclusion reached by the trial court on matters of fact, when much depends on the demeanor of the witnesses. Berry v. Hartzell, 91 Mo. 132; Erskine v. Loewenstein, 82 Mo. 301; Choteau v. Allen, 70 Mo. 336; McQuitty v. Wilhite, 247 Mo. 163. (2) Respondent in good faith purchased the Kraft land and paid the price, $ 3000; he procured the deed to be made to himself and his wife, Jennie E. Graves, all in an honest attempt to carry out his part of the contract. All of the interested parties, grantors and grantees, thought the description correct, and that the land had been properly conveyed. In fact, the substantial title did pass under the deed, and all parties treated it as an absolute conveyance and acted accordingly. It was a substantial, meritorious and valuable compliance and performance by respondent, and, except for a mistake in the description of the land overlooked by all the parties, and which mistake could easily be corrected, was a literal and complete performance on the part of respondent. Equity looks to the substance of transactions and regards the spirit of an obligation rather than its mere form. So all that is generally demanded in equity is a substantial compliance with the agreement sought to be specifically enforced, on the part of him who asks the aid of equity to give it effect. Secret Service Co. v. Mfg. Co., 125 Mo. 140; Blanton v. Distilleries Co., 120 F. 349; Willard v. Tayloe, 8 Wall. 557; Taylor v. Longworth, 14 Peters (U.S.), 174. Mrs. Graves never rescinded the contract, and appellants will not now be permitted to do so. One who has a right to refuse to perform a contract or rescind because of failure or default of the other party to perform according to the terms of the contract must, when resisting specific performance, do so, and at the same time return the money or other thing of value received under the contract. He cannot refuse to perform and at the same time retain the benefits derived from the contract. Powell v. Hunter, 257 Mo. 447; Harvey v. Morris, 63 Mo. 477; Lanyon v. Chesney, 186 Mo. 555; Hunt v. Marsh, 80 Mo. 396; Smith v. Bushby, 15 Mo. 387; Cartwright v. Culver, 74 Mo. 182; Lockwood v. Railroad, 65 Mo. 236; Pulliam v. Burlingame, 81 Mo. 118; Pershing v. Canfield, 70 Mo. 140. (3) Respondent paid $ 3000 for the Kraft eighty and procured a deed to himself and Jennie E. Graves, which purchase and deed, although the description was incorrect in the deed, at least made respondent and his wife the equitable owners of the Kraft eighty. This was at least a valuable part performance of the contract on the part of respondent. Again, he went into possession of the 71.10 acres and erected valuable and lasting improvements thereon, acts referable solely to the oral contract. Jennie E. Graves, as the chancellor found, entered with her husband into the joint possession of the Kraft eighty. The courts have uniformly held that under such conditions specific performance will be decreed. Despain v. Carter, 21 Mo. 335; Johnson v. McGruder, 15 Mo. 365; Hays v. Railway, 108 Mo. 544; Adair v. Adair, 78 Mo. 630; Johnson v. Hurley, 115 Mo. 513; Walker v. Owen, 79 Mo. 563; Tatum v. Brooker, 51 Mo. 148; Young v. Montgomery, 28 Mo. 604; Dickerson v. Chrisman, 28 Mo. 134; Anderson v. Shockley, 82 Mo. 250.
On October 1, 1914, appellants commenced this action against defendant in the circuit court of Ralls County, under the provisions of Section 2535, Revised Statutes 1909, to quiet title to the 71.10 acres of land described in the petition and located in said county, which was formerly owned by Jennie E. Graves, who is the common source of title to said land. Plaintiffs are the children and only heirs at law of said Jennie E. Graves by her former marriage with one Jeff McCune, from whom she was afterwards divorced.
On or about the 11th day of December, 1889, after obtaining a divorce, said Jennie E. Graves married the defendant herein, and continued to live with him as his wife, from the time of said marriage to the date of her death, on or about the 9th day of June, 1914.
The defendant filed an equitable answer claiming title to the 71.10 acres of land aforesaid, under and by virtue of an oral agreement made with his wife in 1908.
The testimony concerning the matters in controversy will be considered in the opinion.
The trial court found the issues in favor of defendant, rendered its judgment accordingly, divested said plaintiffs of the legal title to the land in controversy and vested the same in defendant, etc. Plaintiffs filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.
I. Under appellants' points and authorities, in proposition one, it is said: "To warrant specific performance of an oral contract to convey real estate, such as the contract in suit, the proof must leave no reasonable doubt that the contract was made."
The following authorities are cited in support of above proposition: Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Berry v Hartzell, 91 Mo. 132, 3 S.W. 582; Veth v. Gierth, 92 Mo. 97, 4 S.W. 432; Cherbonnier v. Cherbonnier, 108 Mo. 252, 18 S.W. 1083; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; McKee v. Higbee, 180 Mo. 263, 79 S.W. 407; Russell v. Sharp, 192 Mo. 270, 91 S.W. 134; Kirk v. Middlebrook, 201 Mo. 245, 100 S.W. 450; Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722; Oliver v. Johnson, 238 Mo. 359, 142 S.W. 274; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Hersman v....
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