van Epps v. Redfield

• Decision Date: 23 March 1897
• Citation: 69 Conn. 104,36 A. 1011
• Court: Connecticut Supreme Court
• Parties: VAN EPPS v. REDFIELD et al.

36 A. 1011

69 Conn. 104

VAN EPPS

v. REDFIELD et al.

Supreme Court of Errors of Connecticut.

March 23, 1897.

Appeal from superior court, Hartford county.

Suit by Emma J. Van Epps against John R. Redfield, administrator of John C. Wasserbach, deceased, and others, for specific performance of an oral contract to convey land. From a judgment for plaintiff, defendants appeal. Reversed.

Charles E. Perkins and John C. Parsons, for appellants.

William B. Stoddard and Sylvester Barbour, for appellee.

FENN, J. The present action was before this court on demurrer to the complaint, upon the plaintiff's appeal, at a former session. Van Epps v. Redfield, 68 Conn. 39, 35 Atl. 809. It was sent back for trial to the superior court, which, upon hearing, rendered judgment for the plaintiff, and now the defendants have appealed. The suit was brought to compel the specific performance of an oral agreement relating to real estate. Concerning said agreement, the finding is that John C. Wasserbach, the defendants' testator, resided in Hartford, in 1875, and there became acquainted with the plaintiff. In 1877 an illicit relationship began between them, and continued down to within one year of his death, which occurred in September, 1895, during all of which period Wasserbach had a wife living, as the plaintiff knew. In 1878 a girl was born of this illicit intercourse, but subsequently died. On May 20, 1884, a boy was born of such intercourse. About three months before the birth of said boy Wasserbach took the plaintiff to New York to be confined, and paid the expenses of her confinement. About two months before such birth said Wasserbach and the plaintiff orally agreed that, in consideration of the plaintiff's supporting and maintaining said boy, always at her own expense, the said Wasserbach would purchase and convey to her the premises described in the complaint. The court finds that Wasserbach did subsequently purchase the premises,—a portion of them, namely, the lot on which the dwelling house stood, in September, 1885; and the balance, being two vacant lots adjoining, in April, 1887. In making such purchases, Wasserbach took title in his own name, but this, the court finds, was "in pursuance of his said agreement." It is found that the plaintiff has always maintained, supported, and educated said boy at her own expense, in fulfillment of said agreement, and on her part has fully kept her agreement; that many times since the purchases the said Wasserbach has been requested by the plaintiff to give her a deed of these premises, and as often has promised to do so, but kept putting her off. He died having the title in his own name. The court in the memorandum of decision states that the essential fact that the plaintiff agreed to support the child at her own expense, if Wasserbach would deed to her the premises, rested upon the plaintiff's statement. The court then adds: "That he agreed to deed the premises there can be no doubt, and corroborated as this woman's story is on all sides, and uncontradicted, 1 must find that she speaks the truth when she says the consideration of these premises was to be her support and maintenance of the child." But this is purely an oral agreement, within the statute of frauds, which a court of equity cannot enforce, unless, indeed, there has been a sufficient part performance to relieve the case from the operation and oar of the statute. Concerning this, it was the claim of the plaintiff, sustained by the court below, that the plaintiff's possession of the premises, in the manner found by said court, was sufficient to relieve the case from the statute. This brings us to a controlling question.

The finding of the court in regard to possession should, we think, for clearness, be divided into two parts. The first relates to facts and visible indications; the second, to claims by the plaintiff, admissions by Wasserbach, and conclusions by the court. Concerning the former, it is found that, immediately after each of the purchases above stated, Wasserbach delivered, and the plaintiff entered into possession of, the premises, and has ever since occupied them, using a part as a residence for a time, and thereafter using the entire property as a residence with her boy. In the year 1893 Wasserbach erected a barn at a cost of $2,000 upon one of the lots. He used this barn in common with the plaintiff. He included the property in his tax lists, had it insured in his own name, paid the repairs, water bills, tax bills, insurance, cost of barn, and clearing snow. "He loved and cherished the boy greatly until the day of his own death, and recognized and received him as his own child, and always treated him as such." He contributed of his own accord somewhat to the support, education, and maintenance of the boy. The amount is not stated. The plaintiff expended some money on the premises. That amount also is not found. The other part of the finding bearing upon possession is that all through the negotiations for said purchases of real estate Wasserbach kept the plaintiff fully informed of his progress in the purchases; informed her that he had made them for her, and that they were hers, to be a home for her and the boy; that in pursuance of said agreement she entered into and took possession under a claim of ownership; that at all times she claimed ownership to all the property, which was known, recognized, and assented to by said Wasserbach, and never denied by him; that the barn was erected by Wasserbach for the plaintiff's benefit, and not for his own; that her possession of the premises "continued as it began, and was exclusive." It is found that Wasserbach charged the entire property with rent, but the plaintiff never paid him any rent. He included it in his annual inventories. In his last inventory he stated he owed no man anything. But saying this, the court adds: "During all of the time Wasserbach was making these changes, and doing these acts, he regarded, considered, and treated this property as that of the plaintiff." And finally the court concludes: "The delivery to the plaintiff of these premises, and its continuance, in the manner she held them, can be reasonably and naturally accounted for by the existence of an agreement, as heretofore described, and in no other way." The court, in arriving at the conclusion that the case disclosed a sufficient part performance to take it out of the operation of the statute of frauds, relied, as appears from the memorandum of decision, upon the authority of Andrew v. Babcock, 63 Conn. 120-124, 26 Atl. 715. Certainly, if the court was right in its final finding or inference above stated, that the possession was of such a character as to be naturally and reasonably accounted for by the existence of the agreement named, or indeed by any valid contract to convey title, and in no other way, such reliance was correct. Otherwise it was not. In that case the possession was of such a character as to be sufficient, consistent with the principles there stated at considerable length (page 120-122, 63 Conn., and page 718, 26 Atl.), namely, in brief, a possession that indicated a contract, a new fact or condition,—"an open and visible change of possession under the contract." Not to quote at greater length from our s'p recent decision, the doctrine which we there recognized and applied is that stated and held in many authorities, to one only of which, but that of the highest rank, we...