Smith v. Cameron

• Decision Date: 06 June 1914
• Docket Number: 18,929
• Citation: 141 P. 596,92 Kan. 652
• Parties: GRACE E. SMITH, Appellee, v. HUBER L. CAMERON et al. (THE SOCIAL SERVICE LEAGUE OF LAWRENCE, KAN., Appellant)
• Court: Kansas Supreme Court

141 P. 596

92 Kan. 652

GRACE E. SMITH, Appellee, v. HUBER L. CAMERON et al. (THE SOCIAL SERVICE LEAGUE OF LAWRENCE, KAN., Appellant)

No. 18,929

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SPECIFIC PERFORMANCE--Oral Agreement by Sister to Care for Brother--Agreement Fully Performed. An oral agreement of a sister to remove from her parents' home and live with her brother as his housekeeper and to care for him, upon his promise that she shall have his property at his death, when faithfully kept by her, affords solid grounds for the exercise of the power of a court of equity by a decree for specific performance.

2. SAME. After living with her brother in his home for many years, performing the agreement referred to, the sister married, and for eleven years lived apart from her brother, until her husband died, when she returned to her brother's home and resumed her duties under the agreement, which she continued to perform for a long time and until his death. The brother in the meantime expressed satisfaction with her conduct and held her in affectionate regard. In these circumstances the conclusion of the district court that the agreement was in force at the time of the brother's death is upheld.

M. A. Gorrill, Hugh Means, and R. F. Rice, all of Lawrence, for the appellant.

R. E. Melvin, of Lawrence, for the appellee.

OPINION

BENSON, J.

This is an appeal from a judgment quieting the plaintiff's title to seventy-seven acres of land in Douglas county. The plaintiff's title is founded upon a parol agreement made with her brother, Hugh Cameron, in New York about fifty years before his death, which occurred in December, 1908. The Social Service League is a grantee holding under a conveyance made by a brother of the deceased. Other heirs are also defendants.

It is alleged in the petition that the plaintiff, then young and unmarried, left her parents' home in New York in April, 1858, to go with her brother, Hugh, also unmarried, to Kansas, pursuant to an agreement that if she would move to Kansas with her brother and live and make her home with him there she should be the sole beneficiary of all his property at his death; that she had fully complied with this agreement by being his housekeeper, and by nursing him in sickness, and devoting her life to his service; and that she had also worked upon and cared for the farm, the subject of this action, where they lived until his death, and where she still lives.

The defendants, except the Social Service League, did not appear, and judgment was rendered against them upon default. The league denied the agreement, and claiming title to one-fourth of the property asks for a reversal of the judgment upon the contention that the evidence was not sufficient to prove an agreement; and if any agreement was made it had been abrogated by the plaintiff's marriage.

Hugh Cameron was a Kansas pioneer. He settled upon a claim including the land now in controversy in or about the year 1854, and named it Camp Ben Harrison. He was a Kansas soldier in the war for the Union, and by successive promotions reached the rank of colonel and was made a brigadier-general by brevet, thus gaining the title of general, as he is designated in the abstracts. He was never married. His sister, Grace, the plaintiff, lived with him in a rude cabin at Camp Ben Harrison before the war. The cabin was burned, but the time of its destruction is not shown. A hut was afterwards constructed, in which General Cameron lived for a time. He also lived in a cave, sleeping for a time upon a platform in a tree. Grace lived upon and cared for the place while her brother was serving as a soldier, and afterwards, although lodging for part of the time at the home of another brother. She was married in the year 1873, but lived with her brother for a year afterwards. After that she lived with her husband at different places for eleven years, but frequently returned to her brother's home, and he often visited her. When he was absent from home Mrs. Smith (Grace) and her husband looked after the place and cared for the stock. After Mr. Smith's death, in 1884, Mrs. Smith returned to live with General Cameron, and cared for him and for the home and farm until his death. He was absent at various times upon extended visits at inauguration services at Washington, and once on a visit to his old friend, Senator Ross, in New Mexico. She built a house in which she lived with him. This house still stands upon the place, where she still lives. At different times she loaned him sums of money, aggregating, as the evidence tends to show, about $ 3000.

The evidence offered to prove the alleged agreement consisted principally of the testimony of many persons who related conversations with General Cameron. Other testimony was given to prove plaintiff's services in the home and upon the place.

George Cameron, a brother of the General, testified that he "had two conversations with Hugh Cameron about contract between him and Mrs. Smith with reference to property in Kansas, one before the War of the Rebellion and one somewhere about 1884. General Cameron said that he had an agreement with Mrs. Smith to come west with him, and when he got there, he would give her, for her kindness and services to him, all he had. . . . It was because I knew that he had made such an agreement with her and she had lived with him and taken care of him, that was the conditions and that was the reason, knowing the contract between them and performance on Mrs. Smith's part, that I made the deed to the property to her."

Mrs. Case, of Topeka, testified:

"Had many conversations with General Cameron, extending back for many years, sometimes at our home, at Judge Case's law office, various places, in which he said everything was Grace's anyway; it is all hers; that she had come to this country early in life to make a home for him and help look after his property interests and they had been very congenial and their relations always all right and that it was his agreement with her that if she survived him everything that they had should be hers; that he had promised her that. . . . I am sure my husband was present one time and Mrs. Smith and the General agreed on all these facts I have detailed here; he said Grace always took care of everything when he was away; he also said Grace furnished money to pay the taxes and keep up the repairs and to make improvements on the property; he said also that she furnished money to build a house on the place and did the work she wanted on it. . . . The General said the reason he was going to give this property to Mrs. Smith was she came to Kansas to make a home for him and she had faithfully done so all these years; he talked these things every time almost that he visited us and such statement was made within two years prior to his death. He told me that he was giving it to her as a recompense for what she had done for him, in a way, and she had made it possible for him to have his home; she had cared for him in his sickness and suffering. He said this arrangement had its inception before she came to Kansas. . . . That Grace took care of everything during war time; it was well taken care of."

Others testified as shown in the following quotations:

"Mrs. Smith has been in exclusive possession of place since General's death; she came to Kansas to keep house for him; her care of him was good care; he depended upon her for his home; I heard him discuss this matter I expect a half dozen times; last time I remember was about 1906; . . . He said Grace looked after things, in speaking about repairs and keeping up the improvements on the property. . . . He said 'Ours' in speaking of the property; from what he said I understood it had all been arranged when she came west that she was to have all the property; that is the way I understood it; . . .

"Q. That you gathered from what he said? A. Yes, sir, from all the conversations, that is what I gathered."

"The General, in conversations with me, intimated that everything belonged to Grace, intimated that in all our conversations that everything was Grace's; I was out to the place several times; Mrs. Smith always looking after things, and especially when General was sick she had to go there and stay; . . . Mrs. Smith always looked after the property and cared for it when he was away; she had to look after everything; . . . she did things for...