Smith v. Lore

• Decision Date: 03 June 1930
• Docket Number: 27977
• Citation: 29 S.W.2d 91,325 Mo. 282
• Parties: Mary Smith et al. v. Edna Lore, Appellant
• Court: Missouri Supreme Court

29 S.W.2d 91

325 Mo. 282

Mary Smith et al. v. Edna Lore, Appellant

No. 27977

Supreme Court of Missouri

June 3, 1930

Rehearing Overruled June 3, 1930.

Appeal from Knox Circuit Court; Hon James A. Cooley, Judge.

Reversed and remanded (with directions).

Jayne Jayne & Jayne for appellant.

(1) This case being in equity this court will try the case de novo on the evidence submitted below and will make its own finding without regard to the finding of the chancellor. Stripe v. Meffert, 287 Mo. 366; Price v Morrison, 236 S.W. 297; Barron v. Store Co., 292 Mo. 195, 212; Huggins v. Hill, 236 S.W. 1053. (2) The agreement of Julia Lore with Edna Lore, made after the death of the former's son, to give to Edna Lore all interest that she as his mother had in his property and estate if Edna Lore would remain on the farm and assist in carrying on the business and assist in paying off debts of the former partnership, and full performance on the part of Edna Lore, is ample ground for a decree in equity for specific performance against the heirs and the land. The evidence is sufficient. Fishback v. Prock, 311 Mo. 494; Hall v. Dodson, 274 S.W. 462; Kay v. Niehaus, 298 Mo. 201; Alexander v. Alexander, 150 Mo. 579; Berg v. Moreau, 199 Mo. 416; 9 L. R. A. (N. S.) 157; Merrill v. Thompson, 252 Mo. 714; McCune v. Graves, 273 Mo. 584; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37; McQuitty v. Wilhite, 247 Mo. 163; Bryant v. Stahl, 217 S.W. 31. (3) The Statute of Frauds does not apply under the evidence in this case. See cases last cited supra.

J. E. Rieger and J. E. Luther for respondent.

(1) This is a suit in equity. The finding was for respondents, holding that there was no oral contract proven to have existed between Julia Lore and Edna Lore, that effected the real estate of which M. Lore died seized. While this court will look into the case, facts and circumstances, yet it will affirm the judgment of the chancellor if the facts will justify such a finding. This court will affirm the judgment if the facts are in doubt. Parker v. Roberts, 116 Mo. 667; Short v. Taylor, 137 Mo. 525; Jamison v. Bagot, 106 Mo. 240; Judy v. Bank, 81 Mo. 410; Loan Co. v. Browne, 177 Mo. 412. (2) It is conceded that no evidence of the contract alleged in the petition was preserved by a writing and the proof of its existence rests entirely upon parol testimony. This brings the contract as alleged in direct violation of the Statute of Frauds or the Statute of Wills. Sec. 2169 and Sec. 507, R. S. 1919; Rosenwald v. Middlebrook, 188 Mo. 88; Goodin v. Goodin, 172 Mo. 48; Forrister v. Sullivan, 231 Mo. 345. In order to justify this court in decreeing a specific performance of this oral contract, it is absolutely essential that it should, first, be made to appear that the contract was in fact made, by proof so cogent, clear and forcible as to leave no reasonable doubt of its terms and character; second, it must equally be shown that such contract was made upon a valuable consideration and that a fraud would be perpetrated upon Edna Lore if the contract be not performed; third, that the contract was predicated upon the acts to be performed by Edna Lore, and the proof must show and satisfy the court that the acts performed by Edna Lore referred to and resulted from that contract, and were such acts as would not have been done unless on account of the very contract made. Rosenwald v. Middlebrook, supra; Cherbonnier v. Cherbonnier, 108 Mo. 264; Kinney v. Murray, 170 Mo. 700; McKee v. Higbee, 180 Mo. 297; Asbury v. Hicklin, 181 Mo. 673. (3) The testimony offered by appellant to prove the contract, is but the expressions of witnesses, no two of whom agreed to the same thing and is not clear and convincing beyond a reasonable doubt; nor is the proof in any manner whatever that Edna Lore would be defrauded out of a single penny by failure to specifically perform; and the evidence further fails to prove in the slightest manner that the acts performed by Edna Lore were in keeping with the alleged contract in its performance. The evidence shows that she stayed with Julia Lore and worked about the place, but it was due to the fact that she had an interest in the personal property of her deceased husband and also a one-half interest in his lands or dower therein. Edna Lore did nothing except to perform her duty to take care of her interests that the law gave her in the estate of M. Lore. Rosenwald v. Middlebrook, supra, 89; Berry v. Hartzell, 91 Mo. 137; Kirk v. Middlebrook, 201 Mo. 245. (4) The admissions of defendant in her answer as to the title placed the burden upon her to prove the conditions of the contract in such terms as is consistent with the surroundings, and the acts must as a matter of fact clearly appear to have been done in pursuance of the contract, and to result from the contract and not from some other relation.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

The petition is to determine title and for partition of a lot in Kirksville, Adair County, 160 acres of farm land in Knox County and 360 acres of farm land in Scotland County. The plaintiffs are the heirs of Julia Lore, deceased, being her brother, three sisters, and three sets of nephews and nieces who are children of three deceased brothers. The defendant, Edna Lore, is the widow of Madison Lore, or "M" as he is called in the record, only child of the said Julia Lore. He predeceased her, intestate, in November, 1918, leaving no lineal descendants. His father had died theretofore, so his mother, Julia, was his sole heir under Section 332, Revised Statutes 1909, subject to the dower rights of the defendant Edna; and when Julia thereafter died in January, 1926, her collateral kin, aforesaid, became her heirs.

M. Lore died owning the lot in Kirksville, the 160 acres in Knox County and 200 acres of land in Scotland County. The remaining 160 acres in that county was owned by him and his mother together, each having an undivided half interest. So the plaintiffs claim all the land above mentioned by inheritance from Julia Lore, but concede to the defendant Edna a dower interest in all of it except the half interest in the Scotland County 160 acres which did not belong to Madison. There was no administration on Madison's estate, and at the time this suit was filed Edna had not elected to take a half interest in his real and personal estate under Sections 321 and 323, Revised Statutes 1919.

The answer of Edna Lore adversely claimed the whole title to all the land involved except the half interest in the 160 acres in Scotland County which Julia had owned. This, it was conceded, belonged to the plaintiffs as heirs of Julia.

The basis of the defendant Edna's claim is this. She alleges that when Madison died he and his mother, Julia, were partners in farming and stock raising on the 520 acres of land which figures in this case, and about 280 acres of other land not involved herein which belonged to Julia alone. It is Edna's pleaded contention that upon the death of her husband, Madison, she was preparing to return to her parental home, when Julia proposed to her that if she would remain and continue the aforesaid partnership arrangement, she (Julia) would give her (Edna) all the real and personal property Madison owned when he died. In other words, Edna was to step into Madison's shoes and have the same interest in the partnership and the land used by the partnership and the Kirksville lot that he had owned.

The answer charges that the foregoing contract was fully carried out by both parties up to the death of Julia, except that Julia, through neglect or oversight, failed to convey Madison's land to Edna by deed or will; and it is therefore prayed that the agreement be specifically enforced against Julia's heirs, the plaintiffs. As to the 160 acres of land in Scotland County in which Madison had only an undivided half interest, and in which the plaintiffs inherited the other half interest, the answer joins in praying partition of that tract -- but in accordance with Edna's alleged rights under her contract. A further claim was made in the answer that Madison advanced $ 1200 of the purchase price of Julia's half interest in this 160 acres, and a lien against the same was prayed accordingly; but that claim was not sustained by proof and was abandoned, we may say, so we shall not refer to it again.

By their reply the plaintiffs denied the contract set up in the answer, and pleaded the Statute of Frauds. The court found the issues for the plaintiffs and adjudged Edna Lore's only intereest to be a dower with a right to elect to take a one-half share in fee in lieu of dower, under the statutes. Subject to this dower right the title was decreed in the plaintiffs and partition was ordered in accordance with their interests as heirs of Julia. This decree was entered on December 31, 1926, and by the terms thereof the defendant Edna was required to exercise her option to take election dower by February 21, 1927. Under coercion of this order she did elect to take a half interest in fee within the time fixed, and the court thereupon made a further order appointing commissioners to set out the dower interest and partition the remainder. From this interlocutory decree the defendant Edna has appealed.

As the case is submitted here, practically the only question for decision is whether the oral contract pleaded and relied on by the appellant Edna Lore was sufficiently established by the evidence. Indeed we may go further and say there is no controversy about the fact that Julia Lore, deceased, and Edna Lore did enter into some contract whereby the partnership arrangement theretofore existing between Julia and Madison was continued after Madison's death with Edna as his successor in the enterprise....