Waters v. Cline

• Decision Date: 07 March 1905
• Citation: 121 Ky. 611,85 S.W. 209
• Parties: WATERS v. CLINE et al. [*]
• Court: Kentucky Court of Appeals

85 S.W. 209

121 Ky. 611

WATERS v. CLINE et al. ^[*]

Court of Appeals of Kentucky.

March 7, 1905

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by Martha Waters against W. H. Cline and others. From a judgment for defendants, plaintiff appeals. Reversed.

H. W Root and Geo. H. Ahlering, for appellant.

Laurence Maxwell, Jr., J. C. Wright, L. J. Crawford, B. A. Wright, and Joseph T. Graydon, for appellees.

HOBSON C.J.

Appellant Martha Waters, was the niece of the wife of John Cline of Kenton county, Ky. The Clines had no children. In March 1872, Cline and wife went on a visit to Mrs. Cline's sister Mrs. Rogers, near Brookville, Ind. Mrs. Rogers and her husband and their daughter Mattie (now Mrs. Waters) constituted the family. Mrs. Cline was in poor health--had heart trouble and asthma--and she and her husband were both very fond of Mattie, who was then a girl about 13 years old. They proposed to her parents that if they would let her come and live with them, just the same as their own child, and stay with them until she was 21 years old, they would clothe her, and give her a musical education; and he also agreed that by his will at his death he would give her a farm known as the "Alfred Gregg Farm," and put buildings on it and stock it at an expense of $4,000, and give her $5,000 to run it with. The Gregg farm lay in the county where they lived, about a mile from them, and was worth about $8,000. Finally, after much persuading, the parents agreed to the proposition; and they took the child home with them, to be just the same as if she was their own child. She lived with them until she was 24 years old; nursing and taking care of her aunt, and being treated as a daughter by Cline and his wife. In the year 1883, when she was 24 years old, she married Richard Waters, and has since lived with her husband. Cline faithfully carried out his contract as to the girl except that he died in August, 1902, without making the provision for her by his will as he had agreed to do. He left a large estate, which went to his collateral kindred, as he died intestate. In the suit to settle up his estate, Martha Waters filed her petition, setting up the above facts, and alleging that his estate was worth from $500,000 to $700,000, and praying judgment against the estate for the sum of $8,000, the value of the farm, also the further sum of $4,000, which Cline had agreed he would spend in putting buildings on it, and the further sum of $5,000 for her to run it with. The allegations of her petition were denied. The case was set for trial by a jury, and, at the conclusion of the evidence on both sides, the court instructed the jury to find for the defendants, and Mrs. Waters appeals.

The court gave a peremptory instruction on the idea that the contract relied on was within the statute of frauds (Ky. St. 1903, § 470). An agreement to devise lands is within the statute of frauds, which requires agreements for the sale of lands to be in writing. The rule in Kentucky is that part performance of a contract will not take it out of the statute. Grant's Heirs v. Craigmiles, 1 Bibb, 203; Hayden v. McIlvain, 4 Bibb. 57; Worley v. Tuggle, 4 Bush, 168; Holtzclaw v. Blackerby, 9 Bush. 40; Dean v. Cassiday, 88 Ky. 572, 11 S.W. 601. But the court has also uniformly held that the statute is a shield, not a sword, and that where the party has received the consideration of the contract the court will not allow him to rely upon the statute and keep the consideration. Roberts v. Tunnell, 3 T. B. Mon. 247; Montague v. Garnett, 3 Bush. 297; Bethel v. Booth & Co., 115 Ky. 145, 72 S.W. 803; Weber v. Weber, 76 S.W. 507, 25 Ky. Law Rep. 908. In applying this rule in cases where the party who has performed the contract cannot be restored to the situation in which he was before the contract was made, and it is impossible to estimate by any pecuniary standard the value of what the other party has received, this court has adopted the rule that in such cases the contract itself is the best evidence of the value of what has been received, and, while it will not enforce specific performance by decreeing a conveyance of the land, it will adjudge compensation for what has been received by the defendant under the contract, measured by the consideration which by the contract he agreed to as the value of what he received. This rule was first announced in Berry v. Graddy, 1 Metc.

553. It was followed in Benge v. Hieatt, 82 Ky. 666, 56 Am. Rep. 912; Usher's Ex'rs v. Flood, 17 S.W. 132, 12 Ky Law Rep. 722; Jones v. Comer, 76 S.W. 392, 25 Ky. Law Rep. 773; and Doty's Adm'r v. Doty's Guardian, 80 S.W. 803, 26 Ky. Law Rep. 63. It was also recognized in Brewer v. Hieronymus, 41 S.W. 310, 19 Ky. Law Rep. 645, and Story v. Story, 61 S.W. 279, 22 Ky. Law Rep. 1733.

It is earnestly insisted that the rule thus laid down is unsound and that the cases above referred to should be overruled on the ground that they are inconsistent with the line of cases holding that part performance of a contract is not sufficient to take it out of the statute of frauds. There is no conflict between the cases. It is conceded in all the cases that part performance does not take a contract out of the statute of frauds. It is also conceded in all the cases that, where the statute is relied on, the defendant must restore what he has received under the contract. The cases above referred to, following Berry v. Graddy,...