Rogers v. Wolfe

• Decision Date: 01 December 1890
• Parties: ROGERS et al. v. WOLFE.
• Court: Missouri Supreme Court

14 S.W. 805

104 Mo. 1

ROGERS et al. v. WOLFE.

Supreme Court of Missouri.

December 1, 1890.

SPECIFIC PERFORMANCE — REQUISITES OF CONTRACT — STATUTE OF FRAUDS — EVIDENCE — IMPROVEMENTS.

1. In ejectment by the heirs of a deceased woman, defendant relied on an oral contract by deceased to convey the land to him, in consideration of his promise to support her during life, and on his part performance thereof. The alleged contract was entered into shortly after the parties became acquainted, and while deceased was maintaining herself on the land. Defendant thereafter boarded with deceased, took control of the land, made improvements, and about a year afterwards the parties were married. The only direct evidence of the making of the contract was indefinite, consisting of casual remarks by deceased, and conversations between her and defendant overheard by witnesses. Held, that specific performance would not be decreed in defendant's behalf, as the acts of part performance on which he relied were not clear and definite, and referable exclusively to the contract, and the contract itself, and its terms, were not established by clear and unequivocal evidence.

2. The marriage between the parties canceled defendant's claim for improvements made before that time; and his improvements thereafter made are referable to that relation, and his usufruct of the land thereunder, rather than to any supposed contract for the conveyance of the land; and hence he is not entitled to be reimbursed for any of his improvements.

3. The lower court decreed against a specific performance of the alleged contract, but allowed defendant for his improvements made before the marriage. From this decree, defendant alone appealed; one of his assignments of error being the court's failure to appoint a guardian for two of the minor heirs. Held, that as to these two heirs, for whom defendant himself asked a reversal, the judgment of the lower court allowing defendant for his improvements before marriage would be set aside, but not as to the adult heirs, who failed to appeal. BARCLAY, J., dissenting.

Appeal from circuit court, Jasper county; W. M ROBINSON, Judge.

W. H. Phelps and E. O. Brown, for appellant. Thomas & Hackney, for respondents.

BRACE, J.

This action is ejectment, to recover possession of lots 3 and 4 of the N. E. ¼ of section 4 in township 29, range 30 in Jasper county. The answer sets up an equitable defense. The plaintiffs are the heirs at law of Eunice A. Wolfe deceased, formerly Eunice A. Crum. The defendant was her husband when she died. She died seised of said land in fee. The defense set up in the answer is that by a contract entered into in February, 1870, between the said Eunice A. who was then the widow of Edwin F. Crum, deceased, and the defendant, she agreed to execute a deed to him for the land in suit, in consideration of his agreement to take possession of the premises, cultivate and improve the same, pay off her debts, manage her business, and care for and maintain her during the balance of her life; that the defendant performed his part of said agreement, took possession of the land, made permanent and lasting improvements thereon of the value of $5,000, paid off the debts of the said Eunice A., managed her business, cared for and maintained her during her life; but that she died without having executed to defendant a deed for said premises, "wherefore defendant prays judgment for the specific performance of said agreement, and that plaintiffs convey to defendant said real estate, pursuant to said contract, and for all other proper relief." The court found that the plaintiffs are the owners of the land and entitled to its possession; that the allegations of the answer as to a contract between the said Eunice A. and the defendant are untrue; that the defendant is entitled to the sum of $490 for improvements placed upon the said premises prior to the marriage of the said Eunice A., and the defendant; and that the monthly rents and profits are of the value of $30 per month; and rendered the following judgment and decree, from which the defendant appeals: "It is therefore considered and adjudged and decreed by the court that plaintiff have and recover of the defendant the possession of said premises, together with the monthly rents and profits of said premises, from and after the date of the judgment, together with other costs, and that a writ of execution with a restitution clause issue therefor, provided, however, that plaintiffs pay to the defendant the said sum of $490, the value of said improvements, which said sum is made a special charge and lien upon said premises, and that, if the same is not paid on or before the 15th day of August, 1887, the clerk of this court issue a special execution therefor, and that the said land be sold to satisfy the same." The answer admits that in February, 1870, Eunice A. Crum, widow, as aforesaid, was the owner in fee and in possession of the premises sued for. It appears from the evidence that, at that time, she was living upon the land, her family consisting of herself and a niece Miss Alice Rogers, one of the plaintiffs, then aged about 12 years; that the land had a house upon it, in which she and her niece lived; that about 100 acres of it was inclosed by a very indifferent fence; that there was a stable, a well, and an orchard on the place, and a small portion of it had been broken, and that the remainder was raw prairie land; that the widow was taking boarders, and renting the land to others, and was thus making a living; that she had some household furniture, two horses and a wagon, three cows and five head of young cattle, and some farming implements; that, in the fall of 1869, the defendant appeared in the neighborhood, representing himself to be a bachelor, and a doctor, bringing with him a bunch of cattle, a yoke of oxen, and a team of horses; that in February, 1870, the defendant, his hired hand, and his stock went to Mrs. Crum's to board, and thereafter it became his home and place of business. In the spring and summer of 1870, he seems to have been in control of the farm, except the tillable land, which was rented to a man named Maxon, and is found repairing and making new fences and some other improvements, and thereafter continued in possession, managing and controlling the farm, and all outside affairs, in connection therewith, while Mrs. Crum continued in the control and management of the household affairs, assisted by her niece as before, until May, 1871, when the doctor and Mrs. Crum were married after which they still continued to live upon the place; the doctor farming and improving the place, and practicing his profession, and his wife managing the household affairs, until February 28, 1879, when she died. On the 6th of May following, the defendant sent the following letter to Frederick Rogers, one of Mrs. Wolfe's heirs: "Carthage, Mo., May 6th, `79. Frederick Rogers — Dear Sir: I am the husband of the late E. A. Wolfe. I will just say that I have a claim against the estate which the heirs will have to settle. As regards the Crums and Horace Rogers, I will tell you some other time. I am in possession and will hold the same on, as per contract, until settlement is made. Please answer soon and oblige, B. F. WOLFE." The taxes on the land seem to have been promptly paid, up to the time of the death of Mrs. Wolfe, but by whom does not appear in the evidence. After her death the taxes became delinquent. The defendant employed attorneys, and through them caused suits to be instituted against the plaintiffs, as the heirs of his wife, for such taxes. The plaintiffs, however, paid these taxes afterwards, and he failed to get title in that way. Afterwards, on the 15th of August, 1885, the plaintiffs instituted this suit. On the 13th day of September, 1886, the defendant filed his second amended answer to plaintiffs' petition, setting up the defense hereinbefore stated, and, on...