Schoonover v. Schoonover

• Decision Date: 10 February 1912
• Docket Number: 17,445
• Citation: 121 P. 485,86 Kan. 487
• Parties: D. L. SCHOONOVER, Appellee, v. FRANK SCHOONOVER et al., Appellees, and PHOEBE PATTON, Appellant
• Court: Kansas Supreme Court

121 P. 485

86 Kan. 487

D. L. SCHOONOVER, Appellee, v. FRANK SCHOONOVER et al., Appellees, and PHOEBE PATTON, Appellant

No. 17,445

Supreme Court of Kansas

February 10, 1912

Decided January, 1912.

Appeal from Kingman district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT--To Devise Real Estate--Specific Performance. Where one has rendered services to another under an oral agreement that he is to be compensated by the devise of real estate, the contract may be enforced irrespective of the question of possession, where the services are of such a character that their value in money can not be satisfactorily determined.

John McKenna, for the appellant.

J. Q Jenkins, John H. Connaughton, George L. Hay, Charles C. Calkin, and H. E. Walter, for the appellees.

OPINION

MASON, J.:

In 1885 Samuel Leeper, sr., a widower, was the owner of a tract of land on which he lived. In that year his daughter, Mary Schoonover (with her husband), began living with him, and after he died, in September, 1894, she continued in the occupancy of the land until her own death, in May, 1909, after which her heirs held possession. In November, 1909, an action was brought for partition, in which a controversy was tried between Phoebe Patton, a daughter of Samuel Leeper, sr., who claimed an interest in the property as his heir, and Mary Schoonover's heirs, who claimed to own it all, first in virtue of an oral contract between her and her father that he was to devise the property to her in consideration of her caring for him during the remainder of his life, and second by reason of the fifteen-year statute of limitations. The trial court found in favor of the heirs of Mary Schoonover, and Phoebe Patton appeals.

Full findings of fact were made. Some of these are attacked by the appellant as not supported by the evidence, particularly those to the effect that such a contract was made, and that Mary Schoonover performed her part of it. The evidence in this regard was not as explicit as might be desired, but we think it was sufficient to present an issue of fact for the determination of the trial court, and that all of the findings must stand. It is said that an oral contract for the conveyance of real estate can only be proved by clear and satisfactory evidence, but whether the evidence is of that character, where it has substantial probative force, is for the trial court to determine. ( Woodell v. Albrecht, 80 Kan. 736, 104 P. 559.)

The findings will therefore be spoken of as the established facts of the case. The principal question of law arising upon them is whether there was such a performance of the oral contract on the part of Mary Schoonover as to take it out of the operation of the statute of frauds. (Gen. Stat. 1909, § 3838.) She lived with her father from 1885 to 1894, taking care of him during that time. In 1890 he was adjudged to be feeble-minded and a guardian of his person and estate was appointed. After his death she made various improvements upon the land, building a barn, an addition to the house, and some fencing, the total cost amounting to about $ 510. The appellant relies upon the doctrine that possession, in order to take a case out of the statute of frauds, must be notorious, exclusive, and in pursuance of the contract (Baldwin v. Baldwin, 73 73 Kan. 39, 84 P 568), and maintains that here the possession of Mary Schoonover was not of this kind, because it was shared with her father until his death, and thereafter was constructively shared by her cotenants, she being one of several heirs. It may be sufficient to...