Stillings v. Stillings

• Decision Date: 16 March 1894
• Citation: 42 A. 271,67 N.H. 584
• Parties: STILLINGS v. STILLINGS (two cases).
• Court: New Hampshire Supreme Court

42 A. 271

67 N.H. 584

STILLINGS

v. STILLINGS (two cases).

Supreme Court of New Hampshire. Coos.

March 16, 1894.

Separate bills in equity by Henry Stillings against Darius Stillings and against Leroy Stillings. Case dismissed.

The first bill is for the specific performance of a contract to convey real estate, and the other for a conveyance of a portion of the real estate referred to in the contract. Facts found by a referee: Darius is the father of the plaintiff and Leroy. In July or August, 1885, Darius agreed to deed to the plaintiff his homestead farm, containing 160 acres, as soon as the plaintiff should get moved upon it, and to let the plaintiff have his interest in the crops raised on the farm that year, in consideration of which the plaintiff agreed to move with his wife upon the farm, and support and take care of Darius as long as he lived, and to secure the performance of his part of the contract by giving Darius a life lease of the farm. The agreement was not in writing. Relying on the agreement, the plaintiff moved upon the farm in September, 1885, and has occupied it and carried it on ever since; and Darius has been a member of his family, and been supported in substantially the same style as he had previously lived, and has been well and kindly cared for by the plaintiff and his wife. The plaintiff began to make improvements soon after moving upon the farm. Among other things, he has built 75 to 100 rods of stone wall, shingled the buildings, laid a new floor in the barn, painted the house inside and outside, papered the rooms, and commenced the building of a shed 20 by 30 feet in size. He has expended for betterments and repairs, other than ordinary repairs, sums which, with interest, amount to $690. The plaintiff occasionally suggested to Darius that he ought to deed the farm to him as was agreed, and Darius expressed his willingness to do so when it became convenient: and on one occasion he went to a justice of the peace to have the papers drawn, but the justice not understanding the matter, and having no blanks, it was not done. Darius changed his mind, and on October 18, 1892, denied that the plaintiff was the owner of the farm, forbade him from doing any more work upon it, and gave him formal notice to quit. April 13. 1889, Darius conveyed to Leroy a part of the farm, known as "Lot No. 10." for $500, which was approximately the value of the lot. The deed contained this provision: "Said grantee assumes and agrees to pay the mortgage given by said grantor to David W. Smith, dated October 10, 1887, securing note of $166, dated October 6, 1886; the sum paid by said grantee on said mortgage debt to be deducted from the purchase money thereof." The plaintiff learned of the conveyance the same or the next day, but did nothing about it until bringing this suit, except to reproach Leroy for wronging him by the transaction. The facts apparent to common observation were such at the time of the conveyance as to put a man of ordinary prudence on inquiry in respect to the relations between the plaintiff and Darius, and the plaintiff's rights in the property, and such inquiry would have led to a knowledge of the agreement between the plaintiff and Darius above mentioned.

Ladd & Fletcher, for plaintiff.

Drew, Jordan & Buckley, for defendants.

SMITH, J. The contract upon which the plaintiff relies, not being in writing, is void, under the statute of frauds (Gen. Laws, c. 220, § 14; Pub. St. c. 215, § 1), unless it falls within some exception which equity recognizes. The plaintiff relies upon part performance of the contract to take it out of the statute. Part performance is not sufficient for this purpose, unless it places the party in a situation that will operate as a fraud upon him, unless the agreement be performed. Tilton v. Tilton, 9 N. H. 385, 390; Kidder v. Barr, 35 N. H. 235, 255. In 2 Story, Eq. Jur. § 761, the author says: "If, upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection; and, if admissible for such a purpose, there seems to be no reason why it should not be...