Price v. Lloyd

• Decision Date: 16 August 1906
• Docket Number: 1719
• Court: Utah Supreme Court
• Parties: PRICE v. LLOYD

86 P. 767

31 Utah 86

PRICE v. LLOYD

No. 1719

Supreme Court of Utah

August 16, 1906

APPEAL from District Court, Salt Lake County; C. W. Morse, Judge.

Suit by Martha Lloyd Price against John H. Lloyd, as executor of the will of William Lloyd, deceased. From a judgment for plaintiff, defendant appeals.

REVERSED.

Thomas & Maycock and J. E. Frick for appellant.

APPELLANT'S POINTS.

"If a party would take a case out of the statute of frauds upon the ground of part performance, it is indispensable that the parol contract, agreement, or gift should be established by clear, unequivocal and definite testimony, and the acts claimed to be done thereunder should be equally clear and definite and referable exclusively to the said contract or gift." (Truman v. Truman [Iowa], 44 N.W. 721; Williamson v. Williamson, 4 Iowa 281.)

"To constitute a valid gift of real estate there must be a present intention to give an actual parting with the right of ownership certainty of the estate given and a taking possession in pursuance of the gift."

"A parol gift of land is not consistent with any subsequent acts of control or ownership by the donor; and, if such are proved, the court should give a peremptory instruction to the jury against the validity of the gift." (Collins v Collins, 2 Grant Cas. 117; Lynch v. Lynch's Heirs 23 La. Ann. 242.)

"A parol gift of land will not be sustained unless the donee has made valuable improvements on the land on the faith of the gift." (Montgomery v. Carlton, 56 Tex. 361.)

"When one attempts to make a parol gift of land, and the purchaser enters and makes improvements not exceeding the value of the rent, persons who inherit from the donor are not estopped to sue to recover the land." (Wooldridge v Hancock, 70 Tex. 18, 6 S.W. 818; Cooke v. Young, 2 Utah 254.)

"In a suit of this character, unless the contract stated in the bill is established by a clear preponderance of evidence, the court will not enforce it. If the evidence is conflicting and it is not clear that a contract was in fact made, a bill for specific performance will be dismissed." (78 Va. 700; 5 Munf. 185; 14 W.Va. 397; Gallagher v. Gallagher, 5 S.E. 297.)

The donee must have taken possession pursuant to, and in reliance upon, the gift, and must have made valuable and lasting improvements. To simply have made the property more habitable or convenient for use, by making temporary improvements, is not a matter from which equities arise that will permit the donee to enforce the gift; moreover, the improvements made must exceed the value of the use of the property. (Burns v. Landers [Cal.], 40 P. 162; Asbury v. Hucklin, 81 S.W. 390; Kinsey v. Murray, 71 S.W. 197; Truman v. Truman, 44 N.W. 721; Anson v. Townsend [Cal.], 15 P. 49; Anderson v. Scott, 8 S.W. 235; Wooldridge v. Hancock, 6 S.W. 818; Gallagher v. Gallagher, 5 S.E. 297; Schoomaker v. Plummer, 29 N.E. 1114; Harrison v. Harrison, 15 S.E. 89; Shirley v. Shirley, 27 P. 1097; Wilson v. Wilson, 68 N.W. 910; Lightner v. Lightner, 23 S.E. 301; Railroad v. Knowles, 11 A. 250; Zallmanzig v. Same, 24 S.W. 946; Lich v. Lich, 46 N.W. 764; Green v. Groves, 10 N.E. 404; Lewis v. North, 87 N.W. 314.)

"It must appear that the loss of his improvements would be a sacrifice to the purchaser. If therefore he has gained more by the possession and use of the land or if he has been in fact fully compensated for the improvements they will not be available to him as a ground for specific execution." (Ibid., Browne, Statute of Frauds, secs. 487, 491, 701; Beach on the Modern Law of Contract, pp. 850-1.)

"Possession of vendee holding under parol execution contract of purchase is not adverse to that of his vendor until he has performed the conditions thereof or repudiated the latter's title." (1 Cyc., 1045-6-7-8; 1 A. & E. Ency. of Law [2 Ed.] p. 800; 14 A. & E. Ency. of Law, 1042; Waterman's Specific Performance of Contracts, 271; 22 N.E. 219.)

D. S. Wenger and Arthur Brown for respondent.

RESPONDENT'S POINTS.

1. Where the gift is past and in praesenti. The gift is made not upon any condition and a donee relies upon it and goes into possession and acts upon the faith of that gift.

2. When a gift is upon a condition yet to be performed. Like conditional sales of land. In this class of cases the donee must show performance of conditions, but may claim adversely. Whenever a gift is established falling under either of these heads it will be enforced in a court of equity. (Pomeroy on Contracts, secs. 130, 131, 144, et seq.; Neale v. Neals, 9 Wall. 1; Riggles v. Erney, 154 U.S. 251; Wells v. Wells, 7 Utah 75; Brinton v. Van Cott, 8 Utah; Brown v. Sutton, 129 U.S. 238; Dozier v. Matson, 94 Mo. 329; Freeman v. Freeman, 43 N.Y. 34; Lobdell v. Lodbell, 36 N.Y. 327; Drun v. Stephens, 94 Ind. 181, 33 Am. Dec. 430, 53 Am. Dec. 342, and note; Potter v. Smith, 35 N.W. 916; 68 Mich. 212; Karren v. Rainey, 83 P. 334.)

"Where one enters upon land, claiming title under parol gift only and holds exclusive possession, such possession is adverse, and if continued for the period of limitation, bars the owner's right of entry and of action." (Opinion of Shaw, C. J., 6 Met. 337; Shafer v. Hauser, 70 N.W. 136 [Mich.]; Campbell v. Braden, 96 Penn. St. 388; Stewart v. Duffy, 116 Ill. 47; Rannels v. Rannels, 52 Mo. 114; Martin v. Railroad, 21 A. Rep. 740.)

STRAUP, J. McCARTY, J., concurs. BARTCH, C. J., concurs in the result.

OPINION

STRAUP, J.

1. This action was brought by plaintiff and respondent against the executor of the last will and testament of William J. Lloyd, deceased, to have decreed a specific performance of a parol agreement or gift of land. Upon findings made by the court a decree was rendered in favor of plaintiff, from which the defendant prosecutes this appeal.

It is alleged in the complaint that the plaintiff was a niece of the deceased, that she had married his son; that for the last 21 years of his life the deceased was unmarried; that prior to July, 1891, the plaintiff did acts of kindness for the deceased, and that in consideration thereof, and in consideration of future obligations on the part of plaintiff, "to wit, that she would continue to attend to his wants and assist him," the deceased, in July, 1891, "said to her that he would give her the lot which she now occupies [fully described]; that the said terms of the contract were accepted by her and her father-in- law as a promise to convey for the services she had done and for the services that she was to do, and the said deceased said to her: 'Move in, take possession, and repair and fix it up. It is yours. I want to retain the title until I die, but it shall be yours from this on'--thus making a contract the consideration of which was that the plaintiff should protect and look after said deceased and that he should provide her with that home and property and deed it to her or will it to her." It was further alleged that plaintiff had washed and mended clothes for the deceased, and had made bread and cooked for him, and that she had fully complied with the contract on her part; that she and her husband had moved upon said premises and had expended $ 2,000 thereon in improving the same, and that the plaintiff had furnished the deceased money with which to pay the taxes each year; that when the will of the deceased was produced it did not provide that the property belonged to the plaintiff; and that she had no paper title, but that she was in possession and had been in possession since July, 1891, and has held the property adversely to the said William J. Lloyd and to his heirs. After finding that the parties were related to each other as in the complaint alleged, the court found: "That the plaintiff had cared for the deceased in sickness and in health; that on July 2, 1891, the deceased, William J. Lloyd, gave to the plaintiff by verbal gift the premises involved in this suit; that no writing was made therefor, but plaintiff entered upon the possession and she and her husband, Fred W. Price, expended money thereon as owners of said property and not as tenants; that said possession was taken in pursuance of said promise, and would not have been taken except for said promise that the property should belong to said plaintiff; that the expenditures of money on said premises were made in reliance upon such promise and gift; that verbally the deceased, William J. Lloyd, gave the property described in the complaint to the plaintiff in this case; that she performed all acts and duties and requests made upon her, she was a daughter to him both before and after the gift as long as he lived, she worked for him, washed for him, and did all those things for him which a daughter can do; that she paid taxes on said property to the said deceased." From these facts the court made the following conclusions of law: "That the donation by verbal gift ratified by possession entitles the plaintiff to a decree for the property; that the plaintiff herein acquired no title, right, or interest in and to the premises in controversy by virtue of the statute of limitations or adverse possession, and the decree of ownership in this action is based solely upon the oral gift of said premises as set forth in these findings."

It will be observed that in the complaint plaintiff's right to have specific performance of the conveyance is grounded upon a contract of promise of the deceased to convey the land in consideration of services rendered and to be rendered by the plaintiff, while the findings and conclusions gave plaintiff such right alone upon the fact of a verbal gift ratified by possession. It is elementary that the findings must respond to and be within the issues raised by the pleadings. (2 Spelling, New Tr. & Ap., sections 591-6.) By comparison it is readily...