Page v. Cave

• Decision Date: 19 April 1919
• Docket Number: No. 133.,133.
• Citation: 106 A. 774
• Parties: PAGE v. CAVE et al.
• Court: Vermont Supreme Court

106 A. 774

PAGE

v. CAVE et al.

No. 133.

upreme Court of Vermont. Washington.

April 19, 1919.

Exceptions from Washington County Court; Eleazer L. Waterman, Judge.

Bill by Nat. D. Page against Thomas H. Cave, Jr., administrator of Nathaniel C. Page's Estate, Russell Brown, and others. Heard on demurrer of defendant Russell Brown, in vacation after March term, 1918, Demurrer overruled, bill taken as confessed to him, and decree entered against him in accordance with the prayer of the bill, and he appeals. Decree affirmed, and cause remanded.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

Edward H. Deavitt, of Montpelier, for appellant Russell Brown.

H. William Scott and John W. Gordon, both of Barre, for appellee.

TAYLOR, J. The plaintiff is a son of Nathaniel C. Page, late of Plainfield, Vt., deceased, and the defendants are the latter's administrator, Lois (Page) Brown, a granddaughter of the intestate, and Russell Brown, husband of the said Lois. This cause was argued at the January term, 1917, on a premature appeal, which was dismissed. See 91 Vt. 188, 99 Atl. 780. It was later heard in the court of chancery on the demurrer of Russell Brown to the bill of complaint. The demurrer was overruled, the bill taken as confessed as to him, and a decree entered against him in accordance with the prayer of the bill. From this decree the said Brown comes here on appeal.

The bill alleges in substance that the said Nathaniel C. Page died March 18, 1895, leaving, among other heirs, the plaintiff and the defendant Lois Brown; that prior to May 25, 1892, the said Nathaniel was living on a farm owned by him in Plainfield, and, being in feeble health, had been cared for by an unmarried daughter; that said daughter became desirous of being married and terminating the care of her father; that on said last-named date the plaintiff and the said Nathaniel entered into an agreement by the terms of which the plaintiff was to care for and support his father during his lifetime, give him a suitable burial, and pay all of his just debts and funeral expenses; that in consideration thereof the said Nathaniel agreed to transfer all his property, real and personal, to the plaintiff, and, in case the plaintiff should carry out his part of the agreement, he was to have all of said property; that pursuant to said agreement the plaintiff moved onto and took possession of the farm and all of said Nathaniel's personal property; that ever afterwards he occupied, treated, and handled said property as his own, disposing of the personal property as his business and necessities required, with the full knowledge and consent of the said Nathaniel during his lifetime; that he has faithfully carried out all the terms of said agreement by him to be performed; that at the time he took possession of said farm it was in a run-down condition; that he immediately began improvements in the cultivation of the farm and repaired the buildings and fences at large expense, greatly enhancing the value of the property; that none of the heirs of the said Nathaniel, nor any other person, ever made claim to any interest in said property until about 1913, when for the first time the defendant Lois Brown claimed an interest therein and, without the plaintiff's knowledge, had the defendant Cave appointed administrator of the said Nathaniel's estate; that said Cave as said administrator is attempting to get possession of said farm and property and threatens to sell the same in defiance of the plaintiff's rights; that commissioners on said estate have been appointed, but that no claims have yet been allowed by them; that he is ready and willing to pay any claims that may be allowed against said estate; that both the plaintiff and the said Nathaniel understood, and acted upon the understanding that if the plaintiff carried out the agreement the title to said property would vest in him without a conveyance by deed; that all the heirs of the said Nathaniel except the defendants Brown have executed conveyances of their interests in the property to the plaintiff, and that they should be compelled to do the same. The prayer of the bill was for a temporary in junction restraining the defendants from interfering with the plaintiff's possession of the premises, which was granted, and for a decree confirming the plaintiff's title to the property and compelling the defendants to make such conveyances as are necessary to remove the cloud from his title. The grounds of the demurrer are (1) the statute of frauds, (2) laches, (3) that plaintiff is not entitled to the relief prayed for, and (4) want of equity in the bill.

The objection that the agreement relied upon is within the statute of frauds, and so not enforceable, is not well taken. The court of chancery was justified in overruling the demurrer, so far as this objection is concerned, on the ground that it does not appear whether the agreement was in writing or not, since it will be presumed that it was in writing until the contrary is made to appear. Cooley v....