Sulgrove v. Sulgrove

• Decision Date: 13 December 1948
• Docket Number: No. 40803.,40803.
• Parties: SULGROVE v. SULGROVE et al.
• Court: Missouri Supreme Court

215 S.W.2d 490

SULGROVE v. SULGROVE et al.

No. 40803.

Supreme Court of Missouri, Division No. 2.

December 13, 1948.

Appeal from Circuit Court, Taney County; Tom R. Moore, Judge.

A. H. Blunk and J. R. Gideon, both of Forsyth, for appellant.

Shirley A. Webster, of Winterset, Iowa, Robert L. Gideon and Douglas Mahnkey, both of Forsyth, and J. William Cook, Jr., of Branson, for respondents.

Suit by Lester L. Sulgrove against W. M. Sulgrove, administrator of the estate of Ora F. Sulgrove, deceased, and others, for specific performance of alleged oral contract to convey an undivided half interest in certain realty to plaintiff. From the judgment, plaintiff appeals.

Judgment affirmed.

BOHLING, Commissioner.

This is a suit for the specific performance of an alleged oral contract to convey to plaintiff an undivided half interest in certain described real estate in Taney county, Missouri. The alleged contract was between Lester L. Sulgrove and Ora F. Sulgrove, brothers. Ora died suddenly February 21, 1946, without performing and Lester instituted the action against W. M. Sulgrove as administrator of Ora's estate, and the surviving heirs at law of said Ora other than himself, to wit: W. M., Everett S., and George B. Sulgrove, Lois Moore and Grace Rockzien, and their respective spouses. The finding was for the defendants and plaintiff appealed.

Plaintiff says the sole issue upon this appeal is whether he and Ora entered into the alleged verbal agreement "that if said Lester L. Sulgrove would go in with him, the said Ora F. Sulgrove, and buy said above described lands, and let the said Ora F. Sulgrove live in his home with him and care for him that at his death he would given him, the said Lester L. Sulgrove, his interests in the above described lands." Plaintiff pleaded performance on his part and nonperformance by Ora.

Defendants offered no witnesses. Plaintiff contends the court erred in not accepting his evidence as true and in not giving him the benefit of all reasonable inferences deductible therefrom, while rejecting all evidence unfavorable to him. The cases cited¹ by plaintiff involved demurrers to the evidence in actions at law i. e., the issue of a submissible case. A suit for the specific performance of an oral contract to convey real estate is an equitable proceeding.² Plaintiff's case was submitted and decided on the merits.³ The burden, as in other instances, was upon the plaintiff to establish the terms of the contract he sought to enforce.⁴ Statutes designed to protect against fraud and perjury require wills and contracts for the sale of land to be in writing and signed (R.S.1939, and Mo.R.S.A. §§ 520 and 3354). Courts of equity have decreed, as contended by plaintiff, specific performance of oral contracts for the conveyance of land in appropriate instances, ingrafting an exception on the statutes to prevent their becoming an instrument of fraud. Adams v. Moberg, 356 Mo. 1175, 205 S.W.2d 553; Schweizer v. Patton, Mo.Sup., 116 S.W.2d 39; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390. The foregoing, which embraces all points presented by plaintiff, fails to establish error as the presentation is based on the misconception that error is necessarily established if plaintiff adduced sufficient evidence to make the controverted issue one for the trier of the facts. This, as shown, is not sufficient. Furthermore, in establishing the exception to the statutes equity enforces certain rules to safeguard against these evils of fraud and perjury, among which are: "There must be an absence of doubt or equivocation throughout the whole case in pleadings and proof. From end to end, it must be made out beyond a reasonable doubt, and the state of the proof must bring the case within the reason of the exception to the statute, viz., that not to perform in kind, or in sort, would itself be a fraud. * * * A mere testamentary disposition to devise by will * * * by way of gift or as a reward for services not plainly provoked by and bottomed on the contract in suit will not take the case out of the statute."⁵

Defendants' position that the chancellor's findings on the merits was warranted is well taken. The Sulgroves, several brothers and sisters, lived in the vicinity of Dexter, Iowa. W. M. and Ora made trips to Missouri to purchase cattle and hogs. Ora became interested in the land involved. He was about fifty-one years of age at the time, a widower and had no children. It was in evidence that about October, 1941, Ora expressed to his brother W. M. a desire to by the farm; that Ora and plaintiff and plaintiff's family came to Missouri to inspect the farm; that they returned to Iowa and made the agreement at the home of W. M.; and thereafter the place was purchased. Plaintiff and Ora had a sale of their respective properties in Iowa and they moved to Missouri in the spring of 1942 and, as we read the record, all lived as a family on the farm. W. M. and plaintiff's wife were plaintiff's principal witnesses. However, after Ora's death and on March 13, 1946, W. M. wrote letters to defendants in which he stated: "I have checked up here and Ora did not leave a will. I am sure he intended to leave what he had to Lester, that is what Lester said was the understanding when they bought the place and Manford Pierce said the same thing. He is the fellow they bought the place from. But Lester said he would not try to hold it if you folks thought different." Manford Pierce, a witness for plaintiff, knew all the parties involved. He testified he received $10,000 for the farm; that when the deal was made Ora said: "If we buy this place I want to help Lester get him a home". "He didn't say anything about any contract." The deed, creating a tenancy in common, was made in March and recorded in April, 1942. Otto Wolf, plaint...