Bromeling v. Bromeling

202 Mich. 474 | Mich. | 1918

Kuhn, J.

(after stating the facts). It is the contention of plaintiff’s counsel, and the trial judge also so determined, that there are really but two questions to be decided in this case, which are questions of fact, viz., first, Was the contract made as claimed by the plaintiff? and second, Was there a substantial per-r formance of this contract or agreement on the part of the plaintiff? It is the contention of counsel for the defendant that, while the proofs unquestionably show a purpose and intent on the part of Philamon K. that the plaintiff should have the right of an heir in his property and that it should go. to the plaintiff at his death, and that such intention had existed from the time of the attempted adoption of plaintiff by the Bromelings in 1873 down to the time of creating the estate by the entirety, yet that there is not sufficient proof of a specific contract and agreement as would be legally enforceable. This is urged for the reasons, first, that there was in fact no actual contract, but that it was a mere family intent and expectation, and secondly, that if there was such a contract, it was not made during the interval between the death of the first wife of Philamon K. Bromeling and his marriage to the second wife, and would therefore be void as to the 40 acres in question, for the reason that it was the homestead of the Bromelings, and, being a homestead, a verbal agreement to convey it would be void. It is also contended that the proofs do not show such performance on the part of plaintiff as would take the case out of the statute of frauds, and that the enforcement of the alleged agreement would be unfair, inequitable, and unjust. The trial judge, who had the benefit of seeing and hearing the witnesses, after a careful review of the facts, sustained the plaintiff’s contention as to the existence of the special contract. Upon a review of this record we are of the opinion that the evidence is ample to sustain the finding that it was made at the time and in the manner claimed by the plaintiff. It would not. be profitable to attempt to review all of the testimony, but it will be sufficient to call attention to certain pertinent facts. In the fall of 1898 the Bromeling farm of 110 acres, including plaintiff’s 50 acres, was rented to Mr. Fred Hall. Shortly after Mr. Hall took possession of the farm, Philamon K. moved out of the house on his 40 acres and Mr. Hall moved in. Philamon K. then took up his residence with the plaintiff at Eaton Rapids. Hall remained upon and worked the farm until some time in June, 1899, and until the marriage of Philamon K. to the defendant, Mary A., when he sold all of his interest to Philamon K. and moved off of the farm and Philamon K. moved into the house that had been vacated and continued to keep possession of the whole 110 acres from then until his death; his own 60 acres as well as plaintiff’s 50 acres which he had before leased to Hall. Mr. Hall testified that when Philamon K. was living at Eaton Rapids, he frequently came to the farm, and that he had several conversations with him in which he said that if anything happened to him, he (Hall) should go right on with Mert (plaintiff) *as Mert took all the property when he (Philamon K.) was through with it. The record shows that these conversations occurred before the marriage with the defendant, Mary, took place. The testimony of George C. Morgan-also proved conversations had with the deceased, which showed that Philamon K. Bromeling had voluntarily told him of an agreement existing between himself and the plaintiff relative to the use he was having of the lands of the plaintiff and what the plaintiff was to have in consideration of such use. As to the existence of this contract, the trial judge found specifically as follows, which in our opinion is justified by the record:

*T am, however, without doubt from the proof in, the case, that a contract such as is claimed by the complainant was made, and that it was carried out by the complainant. The fact that Philamon K. has had the use of this land for so many years, without payment of rent, used it as his own, built the fences as he did, and treated the entire one hundred ten acres as a farm by itself, his statements on many occasions, that it was to be Merton’s after he was through with it, the fact that he made no accounting to complainant for its use, and complainant required none, the fact that he made a will giving to defendant her legal rights as his widow and disposed of the remainder in consonance with the terms of this claimed contract, and that the conveyance and disposition of the land in controversy so many years, is in my judgment strong evidence that he recognized and in a way acknowledged the contract which it is claimed was entered into.”

The contract relied upon and proven by the plaintiff is not an executory contract, but rather one that has been substantially executed and performed on the part of the plaintiff. In the case of Ruch v. Ruch, 159 Mich. 231, 235, this court said with reference to this class of contracts:

“Contracts for the conveyance of land, though resting entirely in parol, have been repeatedly held by this court and others not to be within the statute of frauds where one party has executed the parol contract in whole or in part.”

The contract having been substantially performed on the part of the plaintiff, under the authority of Ruch v. Ruch, supra, and kindred cases, the statute of frauds has no application. A reading of this record has not satisfied us. that the result reached by the court below is unjust or inequitable, and the decree is therefore affirmed, with costs to the plaintiff.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.