Wylie v. Charlton

• Decision Date: 06 February 1895
• Parties: WYLIE v. CHARLTON ET AL. (TWO CASES).
• Court: Nebraska Supreme Court

43 Neb. 840

62 N.W. 220

WYLIE

v.CHARLTON ET AL. (TWO CASES).

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

1. Equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. Dawson v. McFaddin, 34 N. W. 338, 22 Neb. 131.

2. To establish such a case, it is not necessary that the proof should be beyond a doubt; a preponderance of the evidence is all that is required in any civil action.

3. The circumstances which tend to cast suspicion upon such claims are circumstances to be considered in weighing the evidence to determine on which side the preponderance lies, but they do not create any rule of law as to the degree of proof.

4. Under section 329 of the Code of Civil Procedure, a wife cannot testify (subject to the exceptions of that section), on behalf of her husband (the plaintiff in an action to establish his title to land), as to conversations with persons since deceased, whose representatives are the adverse party to the action. The inchoate estate of dower which would accrue to the wife should the husband succeed in the action constitutes a direct legal interest in its event.

5. The wife, in this case, was also one of the heirs of the deceased, and a defendant in the action. Held, that her interest as such heir, not being an interest adverse to the representatives of the deceased, would not of itself be sufficient to exclude her testimony, when offered against the representatives.

6. Where a witness is interested on both sides of the record, and the interests are of a different character, the court will not undertake to weigh such conflicting interests, one against the other, and admit the testimony of the witness, because, by such weighing of such interests, that in favor of the representatives may seem to be greater than that against them.

Appeal from district court, Buffalo county; Holcomb, Judge.

Action by Emma Wylie against William Charlton and others, heirs of Ann Charlton, to have certain property declared to be her property. An action by James W. Wylie, husband of said Emma Wylie, against the same defendants, to enforce the specific performance of a contract made by said Ann Charlton. The cases were consolidated. From the judgment in the case of Emma Wylie the defendants appeal, and in the case of James W. Wylie the plaintiff appeals. Affirmed.

Lamb, Ricketts & Wilson and Dryden & Main, for appellants.

Calkins & Pratt, for appellee.

IRVINE, C.

These two cases are based on separate records, but present the same state of facts, and were apparently tried together, under a stipulation which provides that the evidence taken in one shall be considered in the other, with the exception of the evidence of James W. Wylie. They are founded on the same contract, and, while presenting some points of difference, are in so far identical that a single opinion treating both cases will economize space, and, perhaps, best present the questions involved.

One case was begun by James W. Wylie, and the other by Emma Wylie, his wife. That by James Wylie made defendants the heirs and administrator of Ann Charlton, deceased. The defendants in Emma Wylie's case were the same, except that she herself was a defendant in James Wylie's case. Each petition alleged that in January, 1886, Ann Charlton, a widow, was the owner in fee simple of the N. W. 1/4 of section 8, township 11, range 18 W., and the equitable owner, by virtue of a contract of sale from the Union Pacific Railway, of the E. 1/2 of the N. E. 1/4 of section 7. It will be observed that the 80 acres last described adjoin the quarter section first described, and lie immediately west thereof. The petitions further alleged that on January 20, 1886, James Wylie married Emma, the daughter of Ann Charlton, whereupon Ann Charlton agreed with Wylie and wife that if they would remove to Buffalo county, live upon, improve, and cultivate said lands, Ann Charlton would give to her daughter Emma the 80-acre tract in fee simple, free from all incumbrances, and would sell to James Wylie the quarter section for the sum of $2,000, to be paid when James should have sufficiently stocked said land, and that meanwhile James should pay to Ann Charlton such rent as might be agreed upon in lieu of interest on the $2,000; that this proposition was accepted, and that Wylie and wife moved upon said land, and have ever since resided thereon; that they have improved and cultivated the same, and performed all the conditions of the contract on their part; that in October, 1889, it was agreed between Wylie and Mrs. Charlton that the purchase money for the quarter section should be paid, and the conveyance made in the fall of 1890; that on June 6, 1890, Ann Charlton died, intestate, leaving, as her heirs, William Charlton, her son, Ella Charlton, Elizabeth Stevens, and Emma Wylie, her daughters, and William Charlton, second, her grandson; and that William Charlton was her administrator. The prayer in each petition was for a specific performance of the contract. The answers admitted the relationship of the parties, the death of Ann Charlton, and the ownership by her of the land described, and denied all other allegations of the petition. In James Wylie's case the court found for the defendants, and dismissed the case. In Emma Wylie's case the court found for the plaintiff, and decreed specific performance as to the 80 acres. As we have said, the evidence was the same for the most part in both cases. The difference was this: that in Emma Wylie's case the court permitted James Wylie, her husband, to testify as to conversations with the deceased which constituted the parol contract which it was sought to enforce. In James Wylie's case the court excluded the testimony of Mrs. Wylie as to the same facts. Neither party attempted to testify in his own behalf as to such conversations. The result was that in Emma Wylie's case there was direct evidence from her husband as to the contract; in James Wylie's case there was no direct evidence. From the decrees so rendered, appeals have been taken,--in Emma Wylie's case, by the defendants; in James Wylie's, by the plaintiff.

In the case of Mrs. Wylie the ground of the appeal is that the decree is not sustained by the evidence. It is not urged that the court erred in admitting the husband's testimony. One point relied upon is that the contract proved did not, with sufficient certainty, describe the land. It is true that Wylie's testimony is simply to the effect that Mrs. Charlton agreed to convey to her daughter “one of the eighties.” This would be uncertain standing alone, but there is evidence that, when the plaintiffs moved upon the land, they occupied a sod house standing on the quarter section, and that Wylie thereafter erected a barn across the section-line road on the 80-acre tract claimed by Mrs. Wylie; that, while this barn was being erected, Mrs. Charlton was present, and a discussion arose as to where it should be placed, Mrs. Charlton expressing an intention of erecting a house for her daughter on the 80-acre tract, and thinking for that reason the barn should be placed on the quarter section. To this the Wylies responded that, in case they should desire to sell either tract, it would be better that both house and barn should be on the same tract. Mrs. Charlton assented to this, and the barn was for that reason placed on the 80 acres. There is some other evidence tending to show a recognition by Mrs. Charlton of the 80-acre tract claimed as that which was to be conveyed to her daughter. We think that this evidence was sufficient to identify the tract, and to sustain the finding of the trial court in that particular.

In addition to this point, the defendants contend that equity will not interfere to complete an imperfect gift. Of the cases cited in support of that point, Walsh's Appeal, 122 Pa. St. 177, 15 Atl. 470, is a fair illustration. That was a case in which it was sought to enforce a donatio mortis causa. The gift failed, because of a want of the appropriate elements to support such a gift. The contract alleged would present no such case. It presents a case of a parol gift of land, followed by possession and making of improvements. That such a gift will be sustained and enforced in equity is no longer an open question in this state. Dawson v. McFaddin, 22 Neb. 131, 34 N. W. 338;Ford v. Steele, 31 Neb. 521, 48 N. W. 271. See, too, Neale v. Neale, 9 Wall. 1;Brown v. Sutton, 129 U. S. 238, 9 Sup. Ct. 273.

It is still further urged that the proof in this case lacks the requisite degree of certainty, and, in support of that contention, counsel call attention to the rule announced in many cases, of which Allison v. Burns, 107 Pa. St. 50, is an extreme example, to the effect that, in order to sustain a parol gift of land, it must be established by credible proof, of such weight and directness as to make out the facts beyond a doubt; that possession must have been taken and maintained and improvements made on the faith of the promise to convey; and that compensation in damages would be inadequate. We do not question that this rule, somewhat qualified, is a safe one to pursue in weighing the evidence. The courts have, perhaps, gone so far in the way of declaring exceptions to the statute of frauds that the efficacy of the statute has been endangered, and care should be taken in such exceptional cases to avoid the mischief which the statute endeavored to prevent. But we cannot accept the rule referred to as a rule of law governing the review of a case. To accept it as such would require in a civil case at least as high a degree of certainty as in a criminal case. As said by Norval, J., in Stevens v. Carson, 30 Neb. 544, 46 N. W. 655: “It has been repeatedly held by this court, in civil cases, that the party holding the affirmative of an issue is only required to establish it by...