Berry v. Hartzell, 91 Mo. 132

91 Mo. 132 | Mo. | 1886

Sherwood, J.

-The plaintiff brought suit for certain land in Bates county, claiming it as their homestead, under A. J. Baskin, the late husband of Mrs. Berry, and the father of the minor plaintiffs. The legal title was admitted to have been in Baskin, acquired by deed, in 1874, and he “farmed the land as a home.” The defence, set up in the answer, alleged a purchase of the land from Baskin in Ms lifetime, and a delivery’ of possession by Baskin, a payment by defendant of the purchase money in full, which was used by the deceased in buying another homestéad in Cass county, now occupied by plaintiff, and that a promise by the decedent to execute a general warranty deed to defendant was made, which promise was not kept. The answer concluded -with a prayer which is tantamount to a prayer for specific performance, i. e., that the title be divested out of plaintiffs, and vested in defendant, in accordance with the contract.

The main question before the trial court, therefore, was, whether such a contract was entered into by the deceased and the defendant. Of course, his testimony could not establish it, but, while being examined on other matters, he stated, “I did not pay any money for that land, nor was anything given for the payment.” This admission went to the extent of showing that he had not performed the contract, if a contract there was, on his part. And, besides, the testimony of Mrs. Berry, who was a competent witness in her own behalf, and in behalf of her minor children (Moore v. Moore, 51 Mo. 118; Joice v. Branson, 73 Mo. 28, and cas. cit.; Owen v. Brockschmidt, 54 Mo. 285; Evers v. Life Association, 59 Mo. 429; Harriman v. Stowe, 57 Mo. 93; Steffen v. Bauer, 70 Mo. 404), shows that the four hundred and fifty dollars, which was paid to Barber for the Cass-county place, was paid out of the one thousand dollars, raised by Baskin, by a mortgage he gave on the premises in controversy, shortly before he died, and on this point there is no conflict in the testimony. The case of Holman v. Bachus, 73 Mo. 49, does not apply in this instance, because Mrs. Berry was not testifying to conversations had with her husband, but in relation to facts. And, at all events, it is too late to make the point here, that she was incompetent to testify, when no such objection was made in the court below.

No error was committed in rejecting defendant as a witness to prove the contract with the Baskins. Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433. The contract remained unproven, except the loose declarations and admissions of Baskin, said to have been made shortly prior to his death, which evidence was entirely insufficient, unless strongly corroborated by evidence of so cogent a character as to leave no room for reasonable doubt in the mind of the chancellor, who .heard the cause. There was no such corroboration. The rule,' just announced, as to the cogency of testimony necessary in cases of this sort, in respect to resulting trusts, is firmly established in this state (Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Forrester v. Scoville, 51 Mo. 268), and no good reason is perceived why the same cogency of testimony is not necessary to establish a similar implied trust, or trust by operation of law, which has its origin in a contract between a vendor and a vendee, such as is claimed to exist in the present instance (Adams Eq. *128; 2 Story Eq. Jur., secs. 789, 790, 1212, 1201), since, in either case, the effect of the claim, if successful, will be the divestiture of the legal title of the adverse party, and the accomplishment of the transfer of that title to the claimant.

Upon this point, Judge Bliss aptly remarks: “The insecurity of titles, and the temptation to perjury, among the chief reasons demanding that contracts, affecting lands, should be in writing, also, imperatively require that trusts, arising by operation of law, should not be declared upon any doubtful evidence, or even upon a mere preponderance of evidence. There should be no room for a reasonable doubt as to the facts relied upon.” Johnson v. Quarles, supra. Touching this subject, Judge Story says “In order to take a case out of the statute, upon the ground of part performance of. a parol contract, it is not only indispensable that the acts done should be clear and definite, and referable, exclusively, to the contract, but the contract should also be established, by competent proofs, to be clear, definite, and unequivocal in all its terms. If the terms are uncertain or ambiguous, or not made out by satisfactory proofs, a specific performance will not (as, indeed, upon principle, it should not) be decreed. The reason would seem obvious enough ; for. a court of equity ought not to act upon conjecture ; and one of the most important objects of the statute was to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts.” 1 Story Eq. Jur. [12 Ed.] sec. 764.

That eminent jurist, Lord Redesdale, has very forcibly observed: “ The statute was made for the purpose of prevention of perjuries and frauds, and nothing can be more manifest to any person who has been in the habit of practicing in courts of equity, than that the •relaxation of that statute has been the ground of much perjury and much fraud. If the statute had been rig-orotisly observed, tlie result would probably have been that few instances of parol agreements would have occurred; agreements would, from the necessity of the case, have been reduced to writing ; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution, if possession is had in any way whatsoever, means are frequently found to put a court of equity in such a situation that, without departing from its rules, it feels itself obliged to break through the statute; and I remember it ivas mentioned in one case, in argument, as a common expression at the' bar, that it had become a practice 'to improve gentlemen out of their estates' ” Lindsey v. Lunch, 2 Sch. & Lef. 4, 5, 7; see, also, Ells v. Railroad, 51 Mo. 200.

Again, it is our practice to defer somewhat to the conclusion reached by the trial court on matters of fact, where much depends on the demeanor of the witnesses. Chouteau v. Allen, 70 Mo. 336; Erskine v. Loewenstein, 82 Mo. 301.

Holding these views, the judgment is affirmed.

All concur.