Van Sickle v. Keck, 4359.

Decision Date15 July 1938
Docket NumberNo. 4359.,4359.
Citation42 N.M. 450,81 P.2d 707
PartiesVAN SICKLEv.KECK et al.
CourtNew Mexico Supreme Court


Appeal from District Court, Lincoln County; Numa C. Frenger, Judge.

Suit by C. W. Van Sickle against Peter Keck and others to recover an interest in and impress an equitable lien on certain real estate and cancel transfers thereof. From a judgment of dismissal, plaintiff appeals.


Defendant's motion to dismiss bill at close of plaintiff's testimony presents question whether plaintiff, considering his testimony only in light most favorable to him, with all reasonable inferences therefrom, has proved case which will support decree for him.

J. B. Newell and Edwin Mechem, both of Las Cruces, for appellant.

E. E. Young, of Roswell, for appellees.

BRICE, Justice.

The appellant sued the appellees for an interest in, and to impress an equitable lien against, certain real estate situated in Lincoln County, New Mexico.

The appellant will be styled plaintiff; the defendant Keck, defendant, and the other defendants styled defendant Woolard and defendant Franklin, respectively.

Plaintiff alleged in substance that in 1931 he entered into an oral agreement with the defendant and his wife, by the terms of which he was to furnish labor, material and money, sufficient to build a house for defendant on certain lots described; in consideration for which the defendant and wife agreed to board him for life, and upon his death provide for him a suitable burial. That pursuant to this contract the plaintiff did furnish the labor and material with which to build the house in question, of the value of $3550.41.

That plaintiff boarded with defendant and wife until the latter's wife died, which occurred in the latter part of September, 1935; after which defendant failed and refused to longer carry out the contract. That the board furnished plaintiff was of the value of $1607, and that the balance due him was $1943.41; being the difference between the said sum of $1607 and the amount furnished by plaintiff for the purpose stated. It was alleged that the defendant has no other property subject to execution and that plaintiff has no adequate remedy at law.

The tenth paragraph of the complaint is as follows: “That by reason of the premises above stated this plaintiff is entitled to an interest in said property in the sum of $1,943.41; or such sum as the Court may find remains after allowing a reasonable sum for board during the period of time that plaintiff boarded with the said Kecks.”

The prayer is “That plaintiff's interest in and to said property be ascertained and adjudicated and a lien established against the same.”

There were certain transfers of the property in suit in which defendants Keck, Woolard and Franklin were parties, which it is alleged were fraudulent, and for the cancellation of which, the plaintiff prayed.

At the close of appellant's testimony appellees moved for dismissal. The motion was sustained and judgment entered dismissing appellant's bill. From the judgment of dismissal this appeal was prosecuted.

[1] The motion to dismiss called for a declaration of law, the effect of which is: considering plaintiff's testimony only, and in a light most favorable to him, together with all reasonable inferences that can be deduced therefrom, has he proved a case that will support a decree? Considering the evidence under this rule we find the following facts:

The plaintiff was a carpenter and builder, and went to Ruidoso in Lincoln County about 1926. The defendant moved there in April, 1929. Plaintiff boarded with defendant for some time and they became friends. Plaintiff advanced money to the defendant with which to buy a lot, and on this lot plaintiff built for the defendant a house for residential and business purposes, at a total cost to plaintiff of $3564.81. After the house was built, an agreement between the two was entered into whereby in consideration of the money so advanced by plaintiff, the defendant agreed to board plaintiff for the remainder of his life and give him a decent burial at his death. In pursuance of this agreement, plaintiff boarded with defendant and his wife until the latter's death on the 13th day of September, 1935, a period of 1628 days, the value of which was $1628. The defendant thereafter was unable to carry out his agreement further.

The plaintiff assumes the measure of damages to be the difference between the value of the board furnished and the original debt, or $1943.41. This seems not to have been contested.

On the day after this suit was brought defendant conveyed the property in question to the defendant Franklin, and a short time thereafter Franklin conveyed it to defendant Woolard. The defendants Franklin and Woolard knew of the pendency and purpose of this suit at the time of these transfers; and the evidence would warrant the inference that the two transfers were made with the intent and purpose of defrauding the plaintiff out of the debt which it was agreed was due him, and that the defendants Franklin and Woolard had full knowledge of that intent.

The agreement for plaintiff's support and burial was apparently not thought of until after the house was completed. He advanced funds to buy the lot and build the house, and when this was accomplished defendant owed the plaintiff $3564.81.

As we understand plaintiff's argument, it is that he is entitled to an equitable lien against the real property in question, to secure him for the balance of the original debt, after deducting the value of his board for 1628 days at $1 per day; presumptively because he advanced the money to buy the lot and to build the house thereon.

[2] There was no agreement in writing, or otherwise, that plaintiff should have a lien or mortgage on the property to secure his debt. An equitable lien in his favor did not arise from the fact that plaintiff furnished the money to buy the lot (Perry v. Neel, 126 Neb. 106, 252 N.W. 812) and erect the building thereon. Thorbahn v. Walker's Estate, 269 Mich. 586, 257 N. W. 892.

[3] A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another; but will leave the parties to the remedies, if any, that a court of law provides. Washington Market Co. v. District of Columbia, 172 U.S. 361, 19 S.Ct. 218, 43 L.Ed. 478; Spencer v. Williams, 113 W.Va. 687, 170 S.E. 179, 89 A.L.R. 1451; Perry v. Neel, supra; Thorbahn v. Walker's Estate, supra.

[4][5] The amount due plaintiff was computed by deducting from the original debt the value of board furnished the plaintiff for 1628 days at a value of $1 per day. The parties seem to have agreed to this measure of damages; and for the purposes of this suit we will assume the amount is correct. But the correct measure of damages is a sum of money which, invested in safe securities, would produce a monthly income sufficient to board plaintiff during his life (in this case $30 per month), leaving only enough at his death to decently bury him. Freeman v. Fogg, 82 Me. 408, 19 A. 907; Staiar's Adm'r v. Netter, 198 Ky. 788, 250 S.W. 89; Shover et al. v. Myrick, 4 Ind.App. 7, 30 N.E. 207; Baughan v. Baughan, 122 Ind. 115, 23 N.E. 695; Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367. In arriving at the amount of damages, recognized mortality tables may be introduced in evidence to be considered by the jury with other competent evidence to establish the probable length of plaintiff's life, as a basis for proving the time for which the defendant was paid to furnish board to plaintiff. Staiar's Adm'r v. Netter, supra; Morrison v. Atee, 23 Or. 530, 32 P. 400; Shover et al. v. Myrick, supra; Vicksburg & Meridian Ry. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257.

[6] Plaintiff cites cases in which deeds to land, given by aged persons in consideration of support for the remainder of the grantor's life, had been cancelled, or in which equitable liens had been impressed on such lands where the contracts had been breached. Contracts by which aged persons transfer all, or the major portion of their property in consideration of an agreement on the part of the grantee to support the grantor during the remainder of his life, are in a class by themselves, and are governed by different rules, or at least by different presumptions, than those governing other like contracts. Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862.

But this is not a case of that class. It was not alleged or proved that plaintiff was an aged person; or that the consideration paid was any considerable portion of his property; or that he was induced by false promises to enter into the contract; or that defendant was guilty of any fraud in connection with the making or execution of the contract; or that any fiduciary relation existed between the parties. On the contrary it appears that the defendant and the plaintiff were not related; that plaintiff himself proposed to furnish the money to buy the lot and build the house; that after it was built he proposed to cancel defendant's obligation to him if defendant would board him and give him a suitable burial at his death; inferentially, that plaintiff knew defendant and his wife were without means; that defendant did not carry out the contract because of his physical, mental and financial condition, and for no other reason. Plaintiff lived in his own house and defendant's obligation was limited to furnishing to him his meals. He is a carpenter and builder. He owns a hardware store and the house it occupies, and several cottages in Ruidoso which he rents. Apparently he is a man of considerable means and income. He offered to give the debt sued on to Mrs. Keck's nieces if defendant would sell the property and pay them the...

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