Appeal from Circuit Court, Clark County.
Action by Susan A. McKee against Thomas E. Higbee and others. From a decree in favor of plaintiff, defendant Elmer L. Sisson appeals. Reversed.
T. L. Montgomery and S. J. Montgomery, for appellant. Chas. Hiller, W. T. Rutherford, and Smoot, Boyd & Smoot, for respondent.
FOX, J.
This is an action for specific performance. The amended petition, upon which this cause was tried, and answer, fully disclose the controverted questions involved. They are as follows:
"Plaintiff, for amended petition, states: That in the month of November, 1869, Emeline Sisson, who then resided in St. Francesville, Clark county, Missouri, was then a widow and childless, her only son having died in August preceding said date; that plaintiff was then a single woman, making her home with her father, T. W. Anderson, near Newark, Knox county, Missouri; that said plaintiff was the only daughter of Mrs. T. W. Anderson, who was the only sister of Emeline Sisson, and the said Emeline Sisson, being so childless as aforesaid, and desiring the association, company, and companionship of this plaintiff, desired this plaintiff to come and live with her, and become a daughter to her, and take care of her, and be her companion, and solicited her to so come and live with her, and, if she would so come and live with her, that she would give her her property at her death, and make her her sole heir, and make her will immediately in her favor; that said plaintiff referred said Emeline Sisson to her father, T. W. Anderson, and agreed that, if he would consent and make said contract, she would so come, reside with her, give her her filial affection and companionship, and be a daughter unto her. Thereupon said Emeline Sisson, at the request of plaintiff as aforesaid, arranged with the said T. W. Anderson, father of plaintiff, for the plaintiff to become her daughter, and gave her to the said Emeline Sisson. The said Emeline Sisson contracted and agreed with the said T. W. Anderson, father of the plaintiff, by and with the consent of plaintiff, and in her behalf, and with her knowledge and consent, that if said plaintiff would become her daughter, and care for her and render her the affection due from a daughter to her mother, she would give plaintiff all of her property at her death, and make her her sole heir; that it was fully understood and intended by the said Emeline Sisson at the time of making said contract with the said T. W. Anderson, representing and consenting for said plaintiff, that plaintiff should, at the death of the said Emeline Sisson, be her sole heir and have all of her property, and that plaintiff and T. W. Anderson so understood said agreement and contract, and, relying thereon plaintiff went to the home of the said Emeline Sisson at St. Francesville, Clark county, Missouri, in the year 1869, and did care for her as a daughter, and bestowed upon her the kindness and affection of a daughter, cared for her wishes and necessities until 1879, when plaintiff was married to John L. M. McKee; that before said marriage was consummated between plaintiff and John L. McKee she procured the consent of Emeline Sisson to said marriage, and consulted her with reference to said marriage, and the said Emeline Sisson agreed and consented that plaintiff might marry John L. McKee, provided she would continue to live with her as she had done in the past, and stated and represented that the property was to be plaintiff's, as she had contracted with plaintiff's father, and that plaintiff and her husband should stay there and take care of her and the property; that plaintiff and her husband did, in pursuance of said arrangement, stay at the home of Emeline Sisson during all the time the said Emeline Sisson remained in Missouri, and that they still so continue to there reside; that it was further agreed at the time when plaintiff went to live with Emeline Sisson, in 1869, that, if she would so come, the said Emeline Sisson would immediately make her will in favor of plaintiff, giving her all of her property; that plaintiff, confiding in said promise and relying thereon, faithfully cared for the said Emeline Sisson, gave her the affection of a daughter, nursed her in sickness, and attended to her wants and necessities continuously during the time of her residence in Missouri; that at the time of making said contract, and by purchase since making said contract, the said Emeline Sisson
was and became the owner of the following described real estate situate in Clark county, Missouri, viz.: Fifty (50) acres in the southwest part of the east half, northeast fourth, the northwest fourth, northeast quarter, and southwest fourth, northeast quarter, and northwest fourth, southeast quarter, all in section 9, township 65, range 6; and also 40 acres in the northwest part, east half, southeast fourth, section 9, township 65, range 6 west; also 2155/100 acres off east end, north half, southwest fourth, section 9, township 65, range 6; and also a piece of land and lots in St. Francesville, Clark county, Missouri, situated on Clark street, in Wayland's Addition to the town of St. Francesville, being a tract 150x130 feet, upon which is situated the residence of said Emeline Sisson; that about the year 1890 the said Emeline Sisson went to California to visit her brother; that during the time she was there plaintiff visited her on two different occasions, there in California, at the solicitation and request of the said Emeline Sisson, still stating to plaintiff that she would comply with said contract and make her the heir to all of her property; but while said aunt, Emeline Sisson, was in California as aforesaid, and just before her death, which occurred in the early part of the year 1901, the defendant Elmer Sisson procured from the said Emeline Sisson a deed to the following described real estate situate in Clark county, Missouri, viz.: `Fifty (50) acres of land in the southwest part of the east half of the northeast quarter; northwest quarter of the northeast quarter, containing forty acres; the southwest fourth of the northeast quarter, containing 40 acres; and the northwest fourth of the southeast quarter, containing 40 acres; all in section number 9, township 65, range 6 west, and containing in all 170 acres of land; also all other land owned by me in Clark county, Missouri, except 61 and 55/100 acres deeded this day to Thomas Higbee and a house and lot this day deeded to Susan A. McKee.' That said deed was made without consideration by the said Emeline Sisson to said Elmer Sisson, and said deed was intended by said Emeline Sisson, and accepted by said Elmer Sisson, as a testamentary distribution of her property; that the said Emeline Sisson, without consideration, made a deed to defendant Thomas E. Higbee to the following described tract of land, situate in Clark county, Missouri, viz.: `40 acres of land in the northwest part of the east half of the southeast quarter of section 9, township 65, range 6 west, and 21 and 55/100 acres in the east end of the north half of the northwest quarter of section 9, township 65, range 6 west'; that the said Emeline Sisson, without the knowledge or consent of plaintiff, made a deed to plaintiff, conveying to her the following described property, situate in St. Francesville, Clark county, Missouri, viz.: `On Clark street, in Wayland's Addition to said town of St. Francesville, it being a lot 150x130 feet in dimension, and containing dwelling house in which the party of the second part now resides'; that all of the deeds and conveyances so made as aforesaid to defendant were made without consideration; that on the ___ day of February, 1901, the said Emeline Sisson died, having wholly failed to perform her contract and agreement with plaintiff, or without authorizing any one else to fulfill her said contract and agreement with plaintiff; that she did not will to plaintiff her property, as she agreed and contracted with plaintiff to do, but conveyed and assigned her property as hereinbefore stated, without consideration, and the estate of the said Emeline Sisson is wholly insolvent, if the conveyances (and the defendant accepted the same with the knowledge of said contract with plaintiff) hereinbefore stated are permitted to stand; that plaintiff is wholly remediless by or through the ordinary processes and proceedings at law, and calls upon this court of equity for aid; that the said Emeline Sisson at the time of her death was also possessed of large sums of money, amounting to many hundred dollars, the exact amount of which is unknown to this plaintiff, but of which amount the said Elmer Sisson is fully advised, and that he has taken the same and appropriated the same to his own use; that, by virtue of said contract and agreement and services rendered by plaintiff and affection given, plaintiff became and was in equity and good conscience entitled to all of the property described in this petition, and heretofore deeded to parties as hereinbefore set out, together with all of the personal property owned by the said Emeline Sisson at the time of her death. Wherefore plaintiff prays this court of equity to render a decree and order for the specific performance of the contract hereinbefore set out, and decree...
