Walter v. Warner, 6789.

• Decision Date: 26 January 1962
• Docket Number: No. 6789.,6789.
• Citation: 298 F.2d 481
• Parties: Ruby O. WALTER, Appellant, v. Edna Zoe WARNER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

298 F.2d 481 (1962)

Ruby O. WALTER, Appellant, v. Edna Zoe WARNER, Appellee.

No. 6789.

United States Court of Appeals Tenth Circuit.

January 6, 1962.

Rehearing Denied January 26, 1962.

David W. Carson, Kansas City, Kan. (John K. Dear, Ernest N. Yarnevich, John William Mahoney, Joseph T. Carey, and John H. Fields, Kansas City, Kan., on the brief), for appellant.

Wash H. Brown, Kansas City, Kan. (J. Willard Haynes, Kansas City, Kan., on the brief), for appellant.

Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.

BRATTON, Circuit Judge.

This controversy between two sisters involves rival claims of ownership and right of possession to certain residential property in Kansas City, Kansas. Edna Zoe Warner and Ruby O. Walter are sisters, and they were the only children and sole heirs of Joseph W. Moberly and Alice I. Moberly. Edna claimed under an oral contract with her parents, and Ruby claimed under a deed from her mother. Edna instituted the action against Ruby; and for convenience, reference will be made to them as plaintiff and defendant, respectively. Jurisdiction was predicated upon diversity of citizenship.

The court found these pivotal facts. The Moberlys owned and occupied the property as a residence in 1929; during that year they entered into an oral agreement with plaintiff under the terms of which it was agreed that if plaintiff would remodel the residence by adding thereto at her own expense a second floor containing an apartment she might reside in such apartment and on the death of the survivor of the Moberlys, the entire property should be hers; and she performed all of her part of the contract. Joseph W. Moberly died in 1944; in 1951, Alice I. Moberly executed a deed conveying the property to the defendant; and Alice I. Moberly died in 1957. The court concluded that the oral agreement constituted a valid and binding contract; and that the deed was of no force and effect. Judgment was entered determining that plaintiff was the owner of the property and entitled to its possession, and cancelling the deed.

It is basic in the law of Kansas that an oral contract providing that title to real estate shall pass from one party to another at the death of the former will be enforced by specific performance if the contract was not inequitable and was fully performed by the promisee, but in a case of that kind the evidence will be scrutinized carefully and relief will be granted with caution as such cases sometimes lend themselves to the assertion of fraudulent claims. Cathcart v. Myers, 97 Kan. 727, 156 P. 751; James v. Lane, 103 Kan. 540, 175 P. 387; Bateman v. Franklin, 114 Kan. 183, 217 P. 318; Woltz v. First Trust Co. of Wichita, 135 Kan. 253, 9 P.2d 665; Schuler v. Rehberg, 145 Kan. 176, 64 P.2d 571; Bray v. Cooper, 145 Kan. 642, 66 P.2d 592; In re Duncan's Estate, 186 Kan. 427, 350 P.2d 1112.

It is also a fixed principle in the law of Kansas that in a case of this kind involving the validity of an oral agreement for the passing of title to real estate, there must be evidence which tends to prove the primary facts constituting the contract. It is not essential that the evidence tending to prove that the minds of the parties met and united be direct. It is enough if the evidence establishes clearly and satisfactorily facts and circumstances sufficient to raise a convincing implication that the contract was made and was fully performed on the part of plaintiff or on the part of another under whom plaintiff claims. Anderson v. Anderson, 75 Kan. 117, 88 P. 743, 9 L.R.A.,N.S., 229; Pantel v. Bower, 104 Kan. 18, 178 P. 241; Nash v. Harrington, 110 Kan. 636, 205 P. 354; Brown v. Slusser, 130 Kan. 834, 288 P. 743. Whether the evidence is direct or circumstantial is not decisively important. Either is sufficient if it raises a convincing implication that the contract was actually entered into and satisfies the court respecting its terms and performance. Woltz v. First Trust Co. of Wichita, supra; In re Dull's Estate, 184 Kan. 233, 336 P.2d 435.

The sufficiency of the evidence to establish the primary fact that plaintiff and her parents entered into the oral contract and that plaintiff performed in full her obligations thereunder is challenged. There was evidence that the Moberlys paid either $2,100 or $3,100 for the residential property at the time they purchased it in 1919; and that plaintiff paid $3,800 for the remodeling by construction of the second floor apartment. Alice Mary Volek, married daughter of plaintiff and granddaughter of the Moberlys, testified that sometime prior to the construction of the apartment, the Moberlys, plaintiff, and Alice Mary resided in the property; that on account of insufficient space, plaintiff rented living accommodations elsewhere into which plaintiff and Alice Mary moved; that while plaintiff and Alice Mary were living in such rented accommodations, Alice Mary was present when the oral contract was entered into and heard the statements of the parties, respectively, in entering...