Usher's Ex'r v. Flood

• Court: Kentucky Court of Appeals
• Writing for the Court: PRYOR, JUDGE:
• Citation: Usher's Ex'r v. Flood, 83 Ky. 552 (Ky. Ct. App. 1886)
• Decision Date: 19 January 1886
• Parties: Usher's Ex'r v. Flood.

83 Ky. 552

Usher's Ex'r v. Flood.

Court of Appeals of Kentucky.

January 19, 1886

APPEAL FROM LOUISVILLE LAW AND EQUITY COURT.

BROWN HUMPHREY & DAVIE AND GOODLOE & ROBERTS FOR APPELLANT.

1. Mere possession by a parol donee or vendee of land, will not enable him to defeat an action brought by the owner to recover the possession. None of the cases hold that possession alone is sufficient for that purpose they go no farther than to hold that a court of equity will enforce the defendant's equitable rights. (Nichols v Nichols, 1 Marsh., 167; Kenny v. Marsh, 2 Marsh., 49; Letcher v. Cosby, 2 Marsh., 107 Lucas v. Mitchell, 3 Marsh., 245; Barnes v. Wise, 3 Mon., 170; McCampbell v. McCampbell, 2 Mar., 112; McCampbell v. McCampbell, 5 Litt., 92; Brown v. East, 5 Mon., 406; Gudgell v. Duvall, 4 J. J. Mar., 229; Ford v. Ellingwood, 3 Met., 359; Park's Heirs v. White's Heirs, 4 Dana, 552; Harron v. Johnson, 3 Met., 579; Cornelison v. Cornelison, 1 Bush, 150; Rucker v. Abell, 8 B. M., 566; Glass v. Abbott, 6 Bush, 423; Richmond and Lexington Turnpike Road Co. v. Rogers, 7 Bush, 535; Holtzclaw v. Blackaby, 9 Bush, 44; Dillon v. Crook & Co., 11 Bush, 325; Stephens v. Reavis, MS. Op., Dec. 17, 1881 ; Barfield v. McMurtry, MS. Op., Sept. 24, 1884 ; Hayden v. McIlvain, 4 Bibb., 59.)

2. If the consideration for the gift was Flood's marrying, this is as inimical to the statute of frauds as is the agreement to convey the land. (Potts v. Merritt, 14 B. M., 407.)

3. The letter relied on as evidencing a contract to convey is not a sufficient memorandum to satisfy the requirements of the statute of frauds. (Kay & Casey v. Curd, 6 B. M., 100; Ellis v. Desmon's Heirs, 4 Bibb., 466; Fowler v. Lewis, 3 Mar., 445.)

4. The executor having a power of sale but no title, may appeal to a court of equity to declare the ownership of the property to be in the testator, so that it may be fairly sold. (Dean v. Dean, 7 Mon., 310.)

LANE & HARRISON AND E. E. MCKAY FOR APPELLEE.

Brief not in record.

OPINION

PRYOR JUDGE:

J. W. Usher at his death left a last will and testament, by which he appointed the appellant, W. F. Pragoff, his executor. The executor filed this petition in July, 1880, for the settlement of the estate, making the creditors and devisees defendants, and sought to subject the real estate in controversy to sale for the payment of the debts and legacies.

During the progress of the action the appellees, Michael Flood and wife, who were claiming the realty asked to be sold, consisting of a house and lot in the city of Louisville, were made defendants, and this is a contest between the appellees on the one hand and the estate of Usher on the other, as to the right of property in this realty.

Usher being the owner at one time of the property, and invested at his death with the legal title, it is claimed by the appellees that Michael Flood derived his title from Usher in his life-time, under the following circumstances; ??

That in the year 1856 he entered into the service of the decedent Usher, and worked and labored for him from that date until the year 1868, at which time he reached the age of twenty-one years; that at the time he began to labor for the deceased the latter promised and undertook with the appellee (Michael Flood) to make payment and provision for his services when he attained twenty-one years of age; that having arrived at the age of twenty-one, the decedent proposed to him, if he would marry his co-appellee (his present wife) that, in consideration thereof and the past services rendered the decedent by the appellee, he, the decedent, would convey to him the lot of land in controversy, build him a house thereon, and furnish it; that he accepted the proposition made by decedent, married his co-appellee, and in a short time thereafter the decedent erected a house on the lot, and furnished it, and placed the appellee in possession, in compliance with his agreement, and they have been holding and claiming it as their property in the undisturbed possession until the institution of the present action.

The decedent, Usher, was a bachelor, advanced in years, having no near relatives except his father and mother, who died many years since. He seems to have acquired a great fondness for Mike, taking him to live with him at the age of fourteen years, where he remained from that time until his marriage, which occurred when he was about twenty-four years of age. He treated him in every respect as his son, sending him to school, and learning him business habits; and, on the other hand, the adopted son rendered him faithful service in the conduct of business matters, for which the decedent not only expected to compensate him, but, in fact, did compensate him by giving him the house in controversy, and furnishing it throughout, but supplied Mike with all the necessaries of life. An unfortunate disagreement between the two after the marriage of Mike severed their friendly relations, and although the decedent had made one or two wills devising to the appellee the property, the last will, by a codicil annexed, revoked the devise, and left the appellee without any interest in his estate.

That he gave to the appellee the house and lot, and placed him in the possession, is satisfactorily established. That possession was continued in the appellee for near fourteen years, and up to the death of the testator. The decedent had a great desire that Mike should marry, and agreed with him if he would marry and settle in life, he would give him a house and lot, and from the testimony in the case it is evident that the affection he had for the appellee, and the services rendered the decedent by him, constituted the consideration for the promise. He wrote to the appellee from Paris, France, when informed by Mike that his purpose was to marry, telling him to take Mrs. Harvey and Mr. Pragoff down to see the girl, and if they were pleased with her, he would have no objection. I will give you a house and furnish it, and will give you a big wedding. The young lady, in the opinion of one of the two friends, was such a girl as Mike should marry, and as soon as the decedent returned home they were married, and the latter proceeded at once to build the house in accordance with his promise, and placed the young couple in possession. Their first born was named after him, and they were treated by him as a father until the unfortunate disagreement that took place between them shortly before his death. The letter written from France has been lost, but its contents clearly proven by disinterested witnesses.

The statute of frauds is interposed against the claim of title asserted by the appellee. The statute of this State provides with reference to real estate, that " no estate of inheritance or freehold, or for a term of more than one year in lands, shall be conveyed unless by deed or will." (General Statutes, chapter 24, section 2.) And further: " No action shall be brought to charge any person * * * upon any agreement made in consideration of marriage, except mutual promises to marry, nor upon any contract for the sale of any real estate, or any lease thereof, for a longer term than one year, unless the * * * contract, agreement * * * or some memorandum * * * thereof be in writing, and signed by the party to be charged therewith." (General Statutes, chapter 22, section 1.)

The doctrine maintained by counsel for the appellee, and upon which the judgment below to a great extent is sought to be sustained, has received the sanction of this court in some of the earlier cases upon the subject, based upon the idea that a parol contract for the sale of land is not void, but that the statute only forbids the bringing of an action to charge any one upon such a contract.

That if the appellee in this case had instituted his action upon the parol agreement to enforce the contract it would have been dismissed, but being in possession, he may use that possession as a defense to prevent the vendor from recovering the realty.

That the transfer of the possession under a verbal contract although it does not vest the vendee with title, gives him such a right of possession as can not be disturbed by the vendor; so at last, under such a ruling, the only remedy for the vendor is to convey the land if he desires to collect his purchase money, and notwithstanding the statute of frauds, the contract must be enforced. On the other hand, it is insisted, with authority from this court in support of the position, that with the vendee in possession the vendor may tender a conveyance and compel the vendee to pay the purchase money. The vendor has by such an application of the statute to the parol contract sold his land, but the vendee has not purchased. The one (the vendor) may enforce it, but the vendee can not, disregarding all the elementary doctrine in regard to contracts that the obligation must be mutual and binding upon both parties in order to make it valid. Much uncertainty exists in the minds of the profession as to what the law really is, by reason of the inconsistent and conflicting opinions upon this question; but in following the later cases, except now and then a dictum, it will be found that such a contract can not be enforced by either party, and its rescission at the option of either must be adjudged upon equitable grounds. To deny the right of the vendee to enforce specific performance and allow the vendor at his option to make the conveyance and compel performance, is a doctrine not sustained by any of the later cases; but the parol contract may be disregarded by both the vendor and the vendee. It may be instructive to notice some of the cases sustaining the view that the vendee is compelled to accept the title. In the case of Barnes, Anderson, & c., v. Wise, 3 Mon., ...