219 Mo. 279 | Mo. | 1909
Lead Opinion
This is a suit to partition 152 acres of land in Schuyler county and eighty acres of land in Macon county, Missouri. The suit was brought in the Schuyler Circuit Court. The plaintiffs and the defendants are the collateral kindred of Caleb Collins, who died intestate, without widow or issue, in Davis county, Iowa, on August 11, 1905, in which last-mentioned county he owned at the time of his death about five hundred acres of land. At the trial the defendants Albert Collins, Ira Collins, James Collins, Edward Collins and Sarah Gibson filed a joint answer disclaiming any interest in the land in suit. Iowa Harrell, a minor, on motion of her guardian, was made a defendant and filed a separate answer claiming title to the 152 acres of land in Schuyler county, and known in the record as
Thomas R. Hollingsworth, a minor, by his guardian ad litem, prayed the court to strictly protect his interest.
The plaintiffs in reply to the answer of Iowa. Harrell denied all of the allegations therein and for further reply stated that the alleged pretended promise and contract of the said Caleb Collins pleaded in said defendant’s answer to give, transfer and convey the said
The ease was tried at the November term, 1905, without the intervention of a jury, though the defendant and interpleader, Iowa Harrell, demanded a jury. As her interplea and answer stated a cause in equity for the specific performance of an alleged contract, the issue was not triable before a jury and the court properly refused a jury.
To sustain her claim to the land in question, the defendant introduced her mother, Mrs. Maggie Harrell, who testified that she was forty-six years old and that the defendant Iowa was her only child. The witness was married in March, 1878. Iowa Harrell was bom in 1889. Caleb Collins married the sister of the witness and the witness lived with Mr. and Mrs. Collins until witness was married in 1878. Mr. Harrell died in 1890. After the death of her husband, the witness and the defendant, Iowa, went to the home of the deceased, Caleb Collins, where they continued to reside as members of the family until the death of Mrs. Collins in 1898, save and except a portion of that time witness was away settling up her husband’s business. In April, 1902, after Mrs. Collins’s death, the witness bought a small hotel at Leroy, Kansas, took her goods and moved there, taking the defendant,' Iowa, with her for the purpose of giving her a better education and getting her into better society. Witness was for a time a stenographer in a lawyer’s office, but her health failed and she and her daughter returned to the Collins home in Iowa, where they made their home until Mr. Collins’s death in 1905. During all of this' period Caleb Collins gave them a home, clothed and gave them half of the produce and cared for them and sent Iowa to school and paid their medical bills. Caleb Collins became greatly attached to Iowa and on frequent occasions remarked that he intended doing something for her and on several occasions stated that he intended to
Mrs. Ezekiel Dooley, the wife of Mrs. Harrell’s brother, detailed this conversation in this way: “I re-xhember Mr. Collins came up and said to her, she was not going to leave him, and commenced to cry. The
Ezekiel Dooley gave this version of that conversation : ‘ ‘ Cale said, you know, Iowa, I told you I would give you the Queen City farm if you would stay with me to the last,” and she said, “Yes.” “Now,” he said, “I want you to stay,” and then he talked like he would make some disposition for another winter; that he might have some place to send her to school.
The fourth conversation occurred in October, 1904. Caleb Collins, the deceased, and Mrs. Harrell, were preparing to go to Bloomfield; she says that he had gotten out his tax receipts and placed some land numbers on a piece of paper. He told her not to let him forget to take them to town with him as he intended having his lawyer write a deed to Iowa. He said, “I want to fix it for Iowa Harrell for the way she took care of me; that he would take care of it as long as he lived and then it would be hers.” They went off to town, however, without taking the numbers of the land, and neither thought of it until their return home.
This is the substance of the four conversations which Mrs. Harrell testified to. Only three of these occurred in the presence of the defendant, Iowa, and in only two of them did he address his conversation to her directly.
Ezekiel testified that he had a talk with Caleb Collins in the summer of 1903, wherein Collins told him he intended giving Iowa the Queen City farm, and that he “ ’lowed to do more than that for her.”
“Stiles, Iowa, Jnly 28th, 1905.
“Mr. Carruthers,
“Dear Sir:-
i wnt to give away a pice of land,
sssssssssssssssssssssssssssssssssssssssssssssssssssssss
bbbbbbbbbbbb mmmm„„, .... ’ „„„)c (( | cxzvbbb
mmmmmm b,b,b,b,b„„„„„..
hnnm,m,m,m,mkm,m,m,m,m,m,
qwertyuiopqwertyuiopysss mmssssm ddgfgfgfddmbbb gh kl 8z zxcvbn ssssssssssssssss
qwertyuiopqwertyuiopzxcvbnm,.ikjhgfdsa wefthynjhtg
“Stiles, Iowa, Jnly 29th, 1905.
“S. S. Carrnthers,'
Bloomfield, Iowa.
“Dear Sir:
“I want to give away a piece of land, what consideration shonld I pnt on it, the valne of the land, or will one dollar or five dollars, be as good, I want it to be legal, and I want to know what will make it so, please let me hear from yon and oblige.
“Respectfully yonrs,
“Caleb Collins.’’’
This letter she says she kept in her safe to which Iowa carried the key. She said nothing about it to the administrator, although she endeavored to get them to give Iowa the land in question. Mrs. Harrell was a stenographer, had worked in a lawyer’s office, was acquainted with legal t-erms, and knew who Mr. Collins’s attorney was. It will be observed that the letter does not specify what land he desired to give away, or to whom he desired to give it.
W. D: Masterson testified that Mr. Collins told him he had given Iowa a calf and now it was a cow and she had two calves, that he was going to deed her the farm or give her the farm, he did not say which, witness did not pay much attention to it. Witness asked Mr. Collins why he did not sell the Queen City fárm and he replied that land was raising in price and if he sold he would have to look around for more land.
Ceorge Melvin, a justice of the peace of Lancaster, Missouri, testified that he knew the deceased, Caleb Collins, very well; that in the spring or winter before the trial, the deceased came to Lancaster and called at his office and said to him, “I want to make a deed, but I do not care to have anybody know my business or to make it public.” He said he wanted to make a deed to a girl that he had raised or a woman. I do not think he called her name. Witness was about to write the deed when Mr. Collins asked witness if he knew that he, Collins, was living in Iowa, he would probably want to make a deed to some land in Iowa, and Melvin asked him, “Where have you got- to have this deed recorded?” and he said, “Bloomfield, Davis county.” Thereupon Melvin told him that he had better get somebody else to make the deed; that a justice of the
James Collins, one of the defendants in the partition suit who signed the disclaimer in the answer, testified that he was a nephew of Caleb Collins, and was frequently at his house during the last six or seven years and he heard Caleb talk about the Queen City farm. Collins said to him, “Jim, I want to see Sam Carruthers, to see about making a deed, I told them I promised Iowa the Queen City farm, and I want to make a deed to it so that they cannot beat her out of it.” This conversation occurred in February, 1903. He spoke about building a house on this land, wanted to fix it up for Iowa. On cross-examination this witness stated that he also had a suit then pending in the district court of Davis county, Iowa, in .which he claimed that Caleb Collins had made an oral gift of a farm of one hundred and seventy-two acres to him, known as the Savannah farm. And that he expected on the trial of that case to have Mrs. Maggie Harrell and Iowa Harrell as witnesses for him.
John W. Cooksey testified that Caleb Collins said to him in 1904, “I am going to fix her so she won’t have to work when I am gone.” That he was going to deed her the Queen City farm.
Mrs. Stella Dooley testified that she was Zeke Dooley’s wife, and that she heard Caleb Collins say he was going to give Iowa this Queen City farm and fix up a house on it for her. “ Q. Did he say how he was going to give it to her? A. No, sir. Q. Did he say anything about deeding it to her? A. No, sir.” She also testified to the conversation in the yard on the day of Mrs. Collins’s funeral. She heard him say to Iowa
B. B. Burchett testified that he lived at Bloomfield, Iowa, and had been sheriff four years, knew Mr. Collins in his lifetime and was intimate with him; had a talk with him about the Queen City farm; he talked about this young lady, said she was the sweetest child he ever knew, she could not be any closer to him if he had been her father, he was proud of her; said she had a lady’s head on her shoulders, and he was going to school her and make a lady of her so that any body would be proud of her. When she was in Kansas he spoke of going out there to make his home with them. I was at his house and he spoke of a couple of land-buyers having come from Missouri to buy the Queen City farm, and said he thought it would make Iowa more money for him to sell that farm and invest it in Iowa lands, but he said, “Recently Missouri land is enhancing in value and I am not sure but that it will come up to ours here. ’ ’ He went to see Mr. Collins twice while he was sick. The first time he just dropped in and Mr. Collins said, “I knew Bern would run in here, I knew he would come to see me.” He was rather emotional and tears ran down from his eyes. He made me promise to come back. I went back and I took him some wine. I think I took a bottle of Old Quaker liquor. At the request of one of the Collinses I asked him if his business was in the condition in which he wished it to be. One of them asked me to do this, said I could do it better than anyone else, so I said to Mr. Collins, “Cale, we do not think you are going to die or anything worse is going to happen, but we cannot always tell what might occur and the boys wanted me to ask you if your business was in the condition in which you desired
On tbe part of plaintiffs, tbe evidence tended to show that in a suit for tbe partition of tbe lands of Caleb Collins in tbe district court of Davis county, Iowa, among his heirs at law, tbe witness James Collins bad pleaded that be was tbe owner of and entitled to a tract of tbe said lands, amounting to 172 acres, by reason of a sale of said tract to him by Caleb Collins for services rendered said Caleb Collins by said James Collins, and that said Caleb Collins bad not conveyed tbe same to bim and be prayed for a decree of specific performance thereof, which cause was then pending in said court. Plaintiffs also offered in evidence tbe record of a suit by Ezekiel Dooley v. Caleb Collins to quiet the title to certain lands as against a certain mortgage executed by Obediah Dooley to Caleb Collins and a decree accordingly.
Hybarger, a witness for plaintiffs, testified that be was in tbe real estate business in Centerville, Iowa, and bad been since 1893; that in 1902, be accompanied
B W. Cooksey, being recalled, testified that he had filed a claim of $1,200 against estate of Caleb Collins, covering a period for 1891 to 1905, inclusive, for work and labor done, and the same was then pending.
There was other evidence to the effect that after the death of Caleb Collins, Mrs. Harrell only claimed two cows and a calf and a mare as belonging to Iowa. Also evidence that Mrs. Harrell had stated to different witnesses that if Caleb had' not left a will she and Iowa would get nothing. Also that Mrs. Harrell had told DeG-rand he ought to buy the Queen City farm; that Mr. Collins was not able to look after it and could loan his money to better advantage.
I. As already seen, this is a bill in equity on the part of Iowa Harrell to enforce the specific performance of a verbal agreement on the part of Caleb Collins in his lifetime to convey the 152 acres of land, specifically described in her interplea and answer, and lying in Schuyler county and known in the record as the Queen City farm, to said Iowa Harrell. The circuit
It is too plain for discussion that if this were all the testimony it utterly failed to sustain the averments of the answer as to an agreement to convey this specific real estate. There was no reference hy either party to the land which the defendant claims she was to have conveyed upon her staying with him, as long as he lived. Mrs. Ezekiel Dooley in her testimony gave this conversation in practically the same words. Sbe says that Caleb Collins said, “If she would stay he would always see that she had a home, he would school her, that is about all.”
Ezekiel Dooley was present hut he did not testify to this contract alleged to have been made that day. It is significant that after Mrs. Harrell had been examined and cross-examined and re-examined until her testimony covered forty-five printed pages, she had never stated that Caleb Collins had mentioned this real estate. Finally, counsel for. defendant Iowa again reexamined her, and requested her to repeat again the conversation that took place up at the house immediately after the death of Mrs. Collins. Up to that time she had invariably stated the alleged agreement was made in the yard. She had been asked again and again to state the place, time and substance of each conversation she had or had heard in which Caleb Collins referred to this matter and had never mentioned a conversation in the house; and she stated that after we were in the house, “we were talking in the south room and he said he had made up his mind to give loiva the Queen City farm.” Counsel, “That is not what 1 want. What else did he say, if anything?” Ans. “If she stayed with him he would give her the Queen City farm.” Q. “How long did he say for her to stay?” “Ans. Until the last, until he died.” On her previous ■examinations, she had been pressed by counsel for
In Kinney v. Murray, 170 Mo. l. c. 701, the principle governing courts of equity in this class of cases
That case has since been followed and approved in Rosenwald v. Middlebrook, 188 Mo. 58, and Kirk v. Middlebrook, 201 Mo. l. c. 289, 290.
Turning now to the first essential exacted by all the authorities in this class of cases, to-wit, that the contract itself must be definite and specific for the conveyance or devising of the specific land in suit and that the proof of the contract must be cogent, clear and convincing, it must be evident that the statement of Caleb Collins that if the defendant Iowa would stay with him he would school her and educate her and give her clothing and see that she had plenty, and her assent to that proposition, fell far short of the alleged agreement to convey her the Queen City farm. As already remarked, in the testimony of those who heard these statements by Caleb Collins no mention whatever is made of any statement by him that if she would remain with him as long as he lived he would convey to her or give to her the said farm. As to the unsupported
Ezekiel Dooley who was there that day did not hear either of the statements attributed by Mrs. Harrell to Caleb Collins in regard to this farm. Now Mrs. Harrell states in her testimony that the only persons present at the conversation in the yard with her were her brother, Mr. Dooley, and his wife, Stella Dooley, and Mr. Collins, the witness, and her little girl. As already said, Ezekiel Collins heard neither of the statements which Mrs.'Harrell says Caleb Collins made on
Now, of this character of testimony this court has often spoken. In Kinney v. Murray, 170 Mo. l. c. 706, this court said: “ ‘Evidence of such declarations, it is true, is admissible, hut it never amounts to direct proof of the facts claimed to have been admitted by those declarations; and it is sometimes doubted whether it ought to be received at all when introduced for the purpose of divesting a title created by deed.’ [Johnson v. Quarles, 46 Mo. l. c. 427.] ‘ This kind of evidence has always been received with great care, and when not supported by other evidence i s generally entitled to but little weight.’ [Cornet v. Bertelsmann, 61 Mo. l. c. 127.] ‘The evidence consisting, as it does, in the mere repetition of oral statements, is subject to much imperfection and mistakes, the party himself either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. . . . "When we reflect upon the inaccuracy of many witnesses in
When given full consideration it will be seen they were at the most but the expressions of affection by Mr. Collins for the defendant Iowa and of an intention on his part to make provision for her, but it will be observed that to one witness he stated that he was going to deed her a piece of land in Iowa; to another witness, he said he had thought of giving her this Queen City farm, but he did not know but what it would be better to sell it and invest the money for her in other property. But as already said of the conversation in the house, on the day of the funeral, none of these expressions measure up to the statement that he had made an irrevocable contract with the defendant Iowa to convey her this specific land. We can add nothing to what was said by this court in Kinney v. Murray, supra, as to the unsat
But there is still a further consideration, and that is this: in many of the adjudicated cases stress has been laid upon the fact that the party who was seeking this specific performance had severed the natural ties of affection and left his or her home and gone to the family of the decedent, and had fully performed the contract of service for which the deed or will was to be made, but no such state of facts appears in this case.
When we consider the further essential that the performance must be unequivocal and must in its own nature be referable alone to the very contract sought to be performed, because it is only by performance (whereby the party to be charged is benefited) that the conscience of the promisor and those claiming under him, is bound, it is hard to conceive that Mrs. Harrell and her daughter, considering their financial condition, would have refused to continue making their home with Mr. Collins unless he had stipulated to convey them a farm, in addition to giving them a home which . he had for years furnished them from the motives of kindness, generosity and relationship. On his part, left alone, without, wife or children, naturally he desired their society and was willing to continue to give them a home and protection and act the part of a father to Iowa without the thought that he could only procure their assent to Jiis bounty by making an irrevocable contract to convey them a large portion of his estate. Surely if their pres
Why Mrs. Harrell should have announced her intention of leaving him on that day of all others, without having consulted him about it, is inexplicable. Surely it was not because of any thought of impropriety on her part in living there, when his age and the relationship that had existed so long, are considered, for if it was improper to remain without the contract, it was equally immodest and improper to remain with it. We think the circuit court might well have refused to believe, as it did, that Iowa Harrell and her mother continued in the home of Caleb Collins for the sole reason that he had agreed to convey Iowa this farm and that their acceptance of Mr. Collins’s bounty was referable alone to such a contract. We prefer to believe that they felt that they owed him a debt of gratitude to render him some return for all his unselfish kindness to them by remaining with him in his loneliness and at the same time securing to themselves a home, which they so much needed. That Caleb Collins was very fond of Iowa Harrell we have no doubt whatever. She had lived in his home from the time she was a babe. He had no children of his own. He had been generous to her and her another all her life. Neither do we question that he purposed to make some provision for her out of his property, but we think the whole evidence indicates that he had not fully determined what that provision should be. At times he thought of giving her this farm and
In our opinion the circuit court correctly held that the defendant, Iowa Harrell, had not established her right to. a decree of specific-performance of a contract to convey or devise her the Queen City farm, and its judgment is therefore affirmed.
Dissenting Opinion
DISSENTING OPINION.
This suit was instituted in the circuit court of Schuyler county, and had for its object the partition of certain real estáte, described in the petition, situate in Schuyler and Macon counties, among the plaintiffs and defendants, collateral heirs of Caleb Collins, deceased. Iowa Harrell filed an intervening petition, claiming the Schuyler county land, which is set out later. The petition was in the usual and proper form.
On the application of John H. Jeffries, guardian and curator of Iowa Harrell, she was made a party defendant to the suit, and she filed the following intervening petition, the formal parts omitted:
“Now comes Iowa Harrell, one of the defendants by leave of court, by her guardian and curator, John H. Jeffries, and for her answer to plaintiffs’ petition, denies each and every allegation therein contained and set forth.
“Defendant further answering admits that Caleb Collins, late of the County of Davis, and State of Iowa,*312 died intestate and without issue or widow, on the 11th day of August, 1905; that tlie title to the following described tracts of land situated in Schuyler county, Missouri, appears of record to be owned by the said deceased, Caleb Collins, at his death, to-wit: The northeast one-fourth of the southeast quarter of section thirty-one and the north half of the southwest quarter, and the southwest quarter of the northwest -quarter of section thirty-two except eight acres, described as follows, to-wit: Commencing at the northeast corner of said southwest quarter of the northwest quarter, thence running west about thirty-two rods on the north line of said tract to a stake ten feet from a double white oak tree, the smallest one being about six inches in diameter in the year 1870 and marked with two blazes, thence on a straight line to the southeast comer of said tract, thence north to the place of beginning, and all in township sixty-five, range fifteen, Schuyler county, Missouri.
“Defendant admits that the deceased, Caleb Collins, owned the south half of the southeast quarter of section eight in township fifty-seven in range fourteen in Macon county, Missouri, at the time of his death.
“Defendant admits that the heirs of the said deceased Collins are properly set forth in plaintiffs ’ petition.
“Defendant further - answering says that her father died and left her when she was a small child, as his only child; that about six years ago the said Caleb Collins’ wife died, and left him alone without issue; that he was a man of considerable real and personal property both; that his father and mother were dead; that his wife was a sister to the mother of this defendant ; that shortly after the death of the said Caleb Collins ’ wife the said Caleb Collins contracted orally and agreed with this defendant that if this defendant would live with him, stay with him and comfort him until his death that he would give, transfer and convey to her*313 all of the Schuyler county land above described in consideration therefor. This defendant answering accepted said proposition on the part of said Caleb Collins and contracted and agreed with said Caleb Collins to live with him, stay with him and comfort him until his death; and in pursuance of said agreement, this defendant lived with, stayed with and conforted the said Caleb Collins from the time said agreement was entered into until his death, and performed the said agreement on her part fully. The death of said Caleb Collins occurred on the 11th day of August, 1905. By reason of which contract and the performance thereof, by defendant, the said described real estate situated in Schuyler county, Missouri, is owned absolutely by this defendant; that the said Caleb Collins failed and neglected to keep his part of said contract prior to his death and failed to convey, transfer or deed said land to this defendant; that the plaintiffs herein and the other defendants have no interest in said land.
“Wherefore this defendant prays the court that a decree be entered in this cause declaring this defendant to be the absolute owner of said real estate and that the other plaintiffs and defendants in this cause be decreed to have no interest whatever in said real estate; and that the title to said land be vested in this defendant, and the plaintiffs and the other defendants be divested of all right, title and interest in and to said tracts of land, situate in Schuyler county, Missouri, aforesaid, and for all proper and general relief.”
Defendants Albert H., Ira W., Ed. R., James and Lina D. Collins, and Sallie Gibson, filed the following answer:
“That it is their distinct understanding that said land in Schuyler county set out in the petition belongs to Iowa Harrell of Stiles, Iowa, and that she obtained same from her uncle, Caleb Collins, during his life. We further state that it was distinctly understood shortly before the death of said Caleb Collins that said*314 land should be and was the property of said Iowa Harrell and this understanding came from a statement made by said Caleb Collins to certain of the parties hereto. We therefore disclaim any interest in said land and ask the canse to be dismissed as to ns and that there be no costs taxed to ns in the final judgment in said canse but that the costs, if any, be taxed against those only who make the claim to the land.”
The answer of Thomas E. Hollingsworth was as follows:
“Now comes Thos. E. Hollingsworth by his guardian ad litem, P. O. Sansberry, for answer to plaintiffs’ petition, and asks the court to strictly protect his interest. ’ ’
Plaintiffs’ reply to the. answer of Iowa Harrell was a general denial and a plea of the Statute of Frauds.
When the cause was called for trial Iowa Harrell, the intervener, demanded a trial by a jury, which the court denied, and proceeded to try the cause as a chancellor, to which ruling and action of the court she duly excepted. The court found the issues for plaintiffs, and enteredadecree partitioning the land as prayed for in the petition. In due time Iowa Harrell filed her motions for a new trial and in arrest of judgment, which were, by the court, overruled, to which action of the court in so overruling her said motions she duly excepted, and timely appealed the cause to this court.
I. Counsel for intervener, Iowa Harrell, insists that the findings and decree of the circuit court denying specific performance of the contract set out in her intervening petition are not supported by and are against the great weight of the evidence; and that this being a case in chancery, it is our duty to review the evidence and pass upon the weight thereof; and if found to preponderate in her favor, to reverse the de
This court has uniformly held that in equity cases it would on appeal proceed de novo to hear and determine the cause, deferring somewhat to the findings of the trial court; hut if its findings and decree were not sustained by the evidence and the law, then this court would proceed to make its own findings and enter such a judgment as equity and justice might require. [Gibbs v. Haughowout, 207 Mo. l. c. 391.]
Under the rule above announced we have reviewed the entire evidence, as presented by the abstract of record, which is very voluminous, and have carefully considered and weighed the same. .
According to the record disclosures, the following facts stand undisputed, viz: Plaintiffs and defendants are collateral kindred of the deceased, Caleb Collins, who died intestate, without a widow or legal descendants, in Davis county, Iowa, on August 11,1905. At the time of his death he owned about five hundred acres of land, situate in that county, besides what he owned in this State. The land involved in this case is 152 acres and is located near Queen City, Schuyler county, and is known and referred to in the record as the “Queen City farm.”
Caleb Collins was an elderly gentleman at the time of his death; and was a man of more than ordinary intelligence ; he was secretarv of the school board, counselor for many of his neighbors, kept the Iowa statutes, regarded as a safe legal adviser, a successful business man, and commanded the respect of his neighbors. He was kind, sympathetic and charitable. For a number of years prior to his death Maggie Harrell, his wife’s sister, her daughter, Iowa Harrell, and her aged and afflicted father had made their home with him.
Intervener’s father, Dr. Harrell, died in 1890, when she was only eleven months old, and upon his death her mother, Maggie Harrell, took her to the home
The mother was a stenographer and she served as such for a short time in a lawyer’s office in Leroy. While in the hotel business her health failed and she and Iowa returned to the home of Mr. Collins, where they resided until his death, which occurred, as before stated, in 1905.
From 1890 to 1905 Collins gave the mother and daughter a home, clothed and fed them, and sent Iowa to school, and paid their medical bills. During the time they resided with him he became very much attached to Iowa and spoke to and of her in very affectionate and endearing terms, and frequently said he intended to do something for her, and on several occasions stated that he intended to give her the Queen City farm.
Intervener claims the contract set up in her intervening petition was entered into on August 24, 1898, the day of Mrs. Collins’ funeral. At that time she was about nine years old.
Mr. Collins grieved greatly over the death of his wife, and on the day of her death Mrs. Harrell concluded to change her and her daughter’s place of abode, and discussed the matter with her brother, Ezekiel Dooley.
She testified that when Collins heard them discussing the matter he pleaded for them to remain with him, and then and there made and entered into the contract in question with Iowa, to the effect that, if she would
The contention of the respondents is that the evidence fails to establish the contract stated in the petition, or its performance by Iowa Harrell; while, upon the other hand, her counsel insist that the evidence shows beyond a reasonable doubt that the contract was entered into by Caleb Collins and Iowa Harrell, and that she fully performed and executed her part of it, and that a denial of specific performance thereof would be unjust, inequitable, shocHng to the conscience of the chancellor, and would work a fraud and irreparable injury upon her.
These contentions of the respective parties present the vital question involved in this case for determination.
Intervener starts out in the contract with the laboring oar and undertakes the burden of overcoming the Statute of Frauds which requires such a contract to be in writing by showing beyond peradventure that the contract was actually made, and that it was fully executed on her part.
Learned counsel for respondent assails the sufficiency of the evidence to make out a case for appellant for two reasons, first, because the probative force of the evidence shows that Mr. Collins only contemplated giving the land in question to her as a voluntary donation, prompted by love and affection entertained by him for her, and not based upon a contract obligating him to do so; and, second, for the reason that the record discloses the fact that all of the evidence tending to prove the alleged contract comes from interested parties, some of whom have claims pending against the estate, and so marked with fraud and collusion between them that it is unworthy of belief, and that the chan
We will discuss those two propositions in the inverse order in which they are stated.
Before we proceed to the consideration of the evidence of the case, it might he well to state that the principles of law governing this case are so well and firmly settled in this State that it would he a supererogation of labor to rediscuss them in this opinion. We will content ourselves hy simply stating the rule which has been so often stated by this court in similar cases.
The clearest and strongest statement of the rule to which my attention has been called is by Lamm, J., and is found in the case of Kirk v. Middlebrook, 201 Mo. l. c. 289, which-is in the following language:
“As equity follows the law, it [the contract in such case] is non-enforceable in equity, except on one high condition; and such condition arises when the non-enforcement of the contract would work an equitable fraud upon the promisee; that is, the conscience of the chancellor is stirred and relief is extended in his open palm when, and only when, it is certain beyond the peradventure of a doubt that to deny the relief would be to strike down the underlying purpose of the Statute of Frauds, to-wit, the prevention of frauds and perjuries. . . . When a court of equity is called upon to exercise this high and delicate function, it asks, as an irreducible minimum of those who seek relief, proof showing beyond a reasonable doubt: first, not only that some contract existed, but that the precise contract in suit existed; second, the terms of the contract should be so clear and definite as to leave no doubt in intendment and certainty; third, performance on the part of the promisee should be shown, and that performance must be unequivocal, and must in its own nature be referable alone to the very contract sought to be performed, because it is only by performance. . . that the conscience of the promisor and those claiming*319 under Mm is bound; fourth, and the acts relied on to show performance must point to the contract in suit and none other.”
The last utterance of this court upon the subject is found in the case of Wales v. Holden, 209 Mo. 552.
We will now consider and weigh the evidence of this case, and apply to it the rule above stated.
In the first place, Mr. Collins was an elderly gentleman (Ms exact age not appearing from the record, for the reason he was averse to telling his age), with more than'ordinary intelligence; kind and affectionate in his nature, charitable in disposition, and possessed of seven or eight hundred acres of-land and eight or ten thousand dollars worth of personal property.
He was married, but of that union there were no children born. He and Ms wife lived together for many years upon a farm in Davis county, in the State of Iowa. She was a sister of Mrs. Maggie Harrell, the mother of Iowa Harrell, the appellant in this case. Dr. Harrell, the father of Iowa, died in the year 1890, and from that time until the death of Mr. Collins, which occurred in August, 1905, Iowa and her mother lived with him practically all the time, and after the death of his wife, which occurred in the year 1898, they kept house and cared for him until his death. At the time Iowa and her mother first went to reside with Mr. Collins and his wife the former was only nine months old, and from that time up to the time of the death of Mrs. Collins, Mr. Collins had become greatly attached to Iowa, and loved her as affectionately as a father would love one of his own children.
The following facts were shown to exist by the great preponderance of the evidence, to-wit: That after the death of Mrs. Collins, and on the day . of her funeral, Maggie Harrell, Ezekiel Dooley and his wife, Stella Doo^py, were standing in the yard at the home of Mr. Collins, and in Ms presence and hearing, and in that of Iowa Harrell, Mrs. Harrell, while discussing
A portion of Maggie Harrell’s testimony regarding the terms of the contract was in the following language:
“Well the day after my sister’s funeral — we had the wagon, my brother and I; my brother Zeke and his wife, Mr. Collins and several of them, I don’t recall who all they were now, there were several standing in the yard talking, I don’t remember who all ~xgere there. I don’t just now, I could recall there were several out there though I don’t know who they were now. I don’t*321 remember talking to them about- tbat. It impresses me Mr. Caleb Collins was out there. My daughter was there; she was playing there with her cousins.
“Q. "What conversation, if any, took place there by Mr. Collins with reference to Iowa?
11 Mr. Fogle: Q. Now you confine yourself to the conversation that took place between Mr. Collins and your daughter, Iowa.
“A. I said to the little girl, ‘We will get our things and go home with brother Zeke and make our home,’ and Mr Collins said, ‘No’, Iowa was in the yard. He came to where the little girl was and he said, ‘You are not going to leave me now.’
“Q. To whom was he directing his talk? A. To the group. He said Iowa, was my babe and he turned to the little girl, and she looked up at us and he said, ‘You are not going to leave me now.’
“Mr. Fogle: Q. What did he say? A. He said, ‘You are not going to-leave me now in my bereavement and leave me here alone,’ and he began to cry and,the little girl sympathized with him. She ran to him and put her hands in his hands, and he said, ‘No, Iowa, stay with me and I will school you and educate you and give you all your clothes. You live with me and I will see that you have plenty. ’
“Q. Co ahead and state what occurred? A. Iowa put her hand in his and said, ‘I am going to stay with Uncle.’ They started off and went into the house together. She said she was going to .stay with her uncle.
“Q. What was the nest conversation you heard between Mr. Caleb Collins and Iowa? A. Well, I don’t know as I understand the question.
“The Court: Relative to her staying there?
“A. They went in for a little while after that, and he went on doing for her. We stayed there with him and afterwards he said that he made up his mind to give her the Queen City farm.-
*322 “Q. Talked to her? A. Yes, sir.
“Q. What did he say to her? A. In the talk that ¿came np afterwards we were talking about the home place that we lived on and the two farms that he owned and he said that he had concluded to give her the Queen City farm — he thought it would he better on account of the wood being there than the one we lived on.
‘ ‘ Q. How soon after the other conversation in the yard? A. Well it was may be some little time after that before this other came up.
“Q. Did Iowa then continue to stay with him? A. Stayed with him, yes, sir.
“Q. Now, what, if any, conditions did he couple with giving her the Queen City farm, what did he say she would have to do after that? A. She would have to stay with him as long as he lived — to the last.
“Q. And what, if anything, would Iowa say to him when he said she would have to stay with him as long as he lived, or until the last? A. She said she would do it; she never gave a word of inclination that she wanted to leave him.
“Q. Then on his statement that if she would stay with him as long as he lived, or until the last, what did he say he would do for her, if anything? A. He said he would give her this farm, the Queen City farm.
“ Q. Now, I want you to commence and detail that conversation that occurred between Mr. Collins and your daughter, just state exactly what happened, give it all, give the statement, how it came up and everything. A. Well, we were at home and we were talking about different farms that he had, and the suitableness of them — he lived on that farm and he said that he had made up his mind to give Iowa the Queen City farm, if it would suit her, and she said she accepted that, if I understood you; He said he had made up his mind to give her the Queen City farm; that she was to stay with him, take care of him until the last, as long as he lived.”
Mrs. Harrell and her brother, Mr. Dooley, also testified that in 1904 the latter was living in St. Louis and that he and his daughter were visiting her and Iowa at the home of Mr. Collins, when the daughter of Mr. Dooley expressed a wish that Iowa would return to St. Louis with her in order to attend school down there. That sometime later in discussing that question with Iowa, Mr. Collins said to her, “No, Iowa, I cannot get along without you. It is so lonesome without you. I want you and your mamma to stay with me. You can go to school a winter longer here at Stiles. You know you agreed to stay with me if I would give you the Queen City farm.” She said in reply, “Yes”, and told him that she still wanted to go to St. Louis but she would stay with him.
These same witnesses stated that they heard Mr. Collins say many times that he was going to give the Queen City farm to Iowa, and that he was going to fix up the house on it for her so she could live in it and make it her home.
Mrs. Harrell also testified that Mr. Collins told her that he wished to make a deed to Iowa, conveying to her the Queen City farm, and that he went to Bloomfield, Iowa, to have Mr. S. S. Caruthers draw the deed for him, but that he forgot to take with him the description of the land, which prevented him from having the deed'drawn; and that subsequent thereto he wrote the letter to Mr. Caruthers read in evidénce, dated July 29th, 1905, asking advice as to how to draw the deed, which, however, was never mailed, for the reason that
James Collins testified that be was a nephew of Caleb Collins; that be was at the latter’s home frequently during the last five years of bis life, and was there nearly all of the last two years thereof; that be knew Iowa Harrell; that she lived with Mr. Caleb Collins, and that be treated her like one of his own children — kindly and affectionately. In 1905', the- day when Hiram McLaughlin was buried, while he and Mr. Collins were standing at the gate leading into the farm he said to me that he had promised the Queen City farm to Iowa Harrell, and that he wanted to see Sam Caruthers and have him make a deed for him conveying the farm to her so they could not beat her out of it. At different times he discussed the matter with me and also the condition the farm was in. In 1903 he spoke to me about making out a bill and a statement of the dimensions of the lumber and the amount it would take to build her a house on the farm. I made out the list and what it would cost. He talked of having the lumber sawed on the place, that was in July, 1903. He' said he wanted to fix the place up for her and build a square house of four rooms. I figured on the job, but someone else built it. A man lived there then and he built the house. I saw Mr. Caruthers and told him what Mr. Collins said regarding the deed. On cross-examination, he said he had a similar suit pending in the district court of Davis county, Iowa, in which he was claiming that Mr. Collins made an oral gift to him in April, 1905, of the Savannah farm of one hundred and seventy-two acres.
John W. Cooksey testified that Mr. Collins spoke to him about deeding the Queen City farm to Iowa Harrell. He was on his way to Kansas City at the time and he said to me that “Babe,” as he called her “had gone to the St. Louis fair.” . . . “I am going to fix her so she won’t have to work out when I am gone.”
George W. Melvin testified: That he was a justice of the peace at Lancaster, Schuyler county, Missouri; that he knew Caleb Collins; that Mr. Collins called him into his office one day and told him that he wanted to make out and take his acknowledgment to a deed conveying a certain piece of land in Davis county, Iowa, to Iowa Harrell; that he told Mr. Collins that he had no authority to take the acknowledgment to a deed conveying land located in the State of Iowa, and that he had better get a notary public to take the acknowledgment. He said he would do so and he thought it was a duty he owed her, and he then went away.
B. B. Burchett testified: That he had been sheriff of Davis county, Iowa, for four years; that he knew Mr. Caleb Collins; that he had a talk with him one day about conveying a piece of land to Iowa Harrell; he said ‘ ‘ she was the sweetest child he ever knew, and that she could not he closer to him if he had been her father —he was proud of her. ’ ’ He said she had a lady’s head on her shoulders, and that he was going to school her and make a lady of her so that anybody would be proud of her. He also said when she was in Leroy, Kan., that they had advanced schools out there and that he aimed to fix his business here as best he could and go out there and make his home with her and her mother; that he took a great interest in her and her advancement. Some two or three years before his death I was at his home and spoke of some land-buyers from Missouri who wished to purchase the Queen City farm, and he said that he thought it would make Iowa more money for him to sell it and invest the proceeds in Iowa land, but he also said that “recently Missouri land is advancing in value, and I am not right sure but that it will come up to ours up here.”
W. A. Rhinehart testified: That in the fall of 1902 he had a talk with Mr. Collins about buying the Queen City farm, and he said he did not care to sell it; that he had talked of giving that particular piece of land to a young lady living at his house — he called her “Babe” and “Iowa.” He called her by both names. I never saw her before or since.
William Masterson testified: That he knew Mr. Collins, and that when he visited the Queen City farm he would frequently stay with him; that Mr. Collins had a girl living with him but he never knew her name until he heard it here in the court room; that one time when Mr. Collins was at my house he told me that he had given the girl a calf, and she had made a cow,
All the evidence on both sides shows, and it is undisputed, that Iowa Harrell and her mother lived with and kept house for Mr. Collins from the date of his wife’s death down to that of his own death — about seven years, with the exception of some three or four months spent by her and her mother in Leroy, Kansas. It is also undisputed that they cared for him and administered unto his wants and necessities during all those years, and nursed and cared for him during his last sickness, and that Iowa treated him with the greatest kindness and with love and affection, as much so as if he had been her own father. .
Mr. Hybarger testified, -on the part of plaintiffs, that he was at Collins’s in an endeavor to buy the land in the fall of 1902. That Mrs. Harrell was present. That Collins was reluctant about selling the land when Mrs. Harrell spoke up and urged him to sell it. To her Collins replied that he had an idea of his own about the farm; that he did not know but that he might want to give it to her and Iowa for a home, to which Mrs. Harrell replied that she would not have it for a home if she had to live on it.
Elmore Israel testified to a- talk he had with Collins while Mrs. Harrell and Iowa were running the hotel in Kansas, whither they had gone in direct violation of the terms of the purported contract upon which the intervener bases this suit, that he sometimes thought they were trying to force him to make over some property to the child. That he intended leaving the child something, but not at present.
Thomas P. Collins, one of the administrators, testified that at the time he was taking the inventory Mrs. Harrell said to him, “Uncle Cale gave Babe these two cows and this calf and this mare.” “I said, ‘Is that
A1 Bay, who lived at the Collins home, testified that a few days after the death of Collins, Mrs. Harrell said to him: “If he [Cale] has not made a will Babe and I will get nothing.” That during his last illness Mrs. Harrell said to him: “If he gets well he will do something for Babe and me. If he don’t get well we will get nothing.” I asked her if Cale had ever given Babe anything and Mag replied, “Nothing hut.a horse and a cow. ” .
Dr. Grant Giles testified that Mrs. Harrell said to him after Collins’s death: “I and Babe would like to have the Queen City farm, and if Uncle had lived he would have given it to us.” That a day or two after the sale she told them, “If Uncle had lived he would have given Babe and me something.” She told him that Cale had said to her while he was sick: “Don’t cry; maybe I-will get well and if I do I will give you and Babe sometMng.” The doctor further testified that Ezekiel came to him and asked if Collins had left a will, as he was anxious to know whether or not Babe and Mag would get anything out of the estate.
Sam LeGrand testified that in 1901 he went to Collins to see about renting the farm. While Collins was away Mrs. Harrell said to him: “You ought to buy the Queen City farm.” To which he replied, “I did not know Uncle wanted to sell it.” Mrs. Harrell then said to him: “Uncle cannot look after it and he is getting so old he cannot look after it and he has more land here than he can- take care of; he could loan the money and get more out of it than he does out of the farm with.less trouble.”
James H. Collins, one of the administrators, testified that Mrs. Harrell told him that “Cale always intended doing sometMng for us and we would like to have Iowa get the Queen City farm.”
If this evidence is to be believed, then there can be no doubt but what Caleb Collins entered into the contract with Iowa Harrell stated in the petition; and that she fully and fairly performed her part thereof. One of them testified that she was present when the contract was made, and testified positively what the terms thereof were. Two others testified that Caleb Collins told them that he had agreed to give Iowa the Queen City farm in consideration of her agreeing to stay with him and to care for him and comfort him during the remainder of his life.
Mr. Collins was old, and was left alone in the world by the death of his wife; be was greatly bereaved by her death and loss of his life-long companion, with no children or other'descendants of his own to lean upon or upon whom to bestow his generosity and affections ; nor had he those of his own blood to love him, care for or to administer unto him in his old and declining years.
What was more natural than for him to turn his mind and affections to the niece of that beloved and departed wife, whom he had virtually reared from infancy, and whom he had learned to love, and around whom his affections had entwined as tenderly and fondly as if she had been his own child? What noble sentiment that springs from the human heart would
That being true, then what was more natural than for him to make provision for the dependent object of his affections out of the amplitude of his fortune in consideration of the care and loving services to be administered unto him by willing and affectionate hands ? The mere asking of these questions carries with them their own answer — nothing.
Those were the conditions surrounding him, and the relations that existed between them at the time the alleged contract was entered into.
The death of Mrs. Collins suggested to Mrs. Harrell the propriety of the departure of herself and daughter from the home of Mr. Collins, which severed all her claims and natural ties to that hospitable home, and prompted her to make other arrangements for a home for herself and Iowa.
While discussing that matter with Mr. Dooley, her brother, Mr. Collins entered a protest against their leaving him and taking up their abode with her brother. He reminded them of his old age, helpless condition and sad bereavement, and pleaded with tears in his eyes with the young and affectionate child, who knew no other father, not to leave him in that sad plight, and very naturally said to her in the presence of her mother, and afterwards repeated in the presence of her uncle and many of his and their neighbors, that if she would stay with and care and comfort him to the end he would provide a home for her, clothe and educate her, and give her the Queen City farm, which at that time was not worth more than $3,500, with the beneficial use thereof withheld from her until death should remove him, which, of course, largely detracted from that value. Why should he not have made that
Those are the matters testified to by Mrs. Harrell, Ezekiel Dooley and Stella Dooley, his wife. But it is argued that Caleb Collins did not agree to give Iowa the farm because her mother did not testify to the terms of the agreement until after she had been asked several times about it. That is true, but upon an inspection of the record it will be seen that when interrogated regarding the contract, the shrewd objections of counsel would divert her mind from the question, and it was not answered fully until she did so upon her redirect examination. But those facts do not rest exclusively upon their testimony. There are other persons who testified in the case whose evidence is just as convincing as theirs.
James Collins testified that he was a nephew of Caleb Collins, and that he heard his uncle say upon several different occasions that he was going to convey the Queen City farm to Iowa Harrell. Also that he wanted to see Sam Caruthers about drawing the deed for him. In this he is corroborated by the testimony of Mrs. Harrell, who said Mr. Collins went to Bloomfield to see Mr. Caruthers about the same matter, but failed to have the deed executed because he forgot to take
James Collins also testified that Ms uncle told him that he wished to bmld a house on the farm for Iowa, and had him make out a bill for the lumber required for that purpose, and to make an estimate of the probable cost of the house. The evidence shows that he af-terwards built the house, but got someone else to build it.
Mr. Cooksy testified that he heard Mr. Collins say he intended to leave Iowa in such shape that she would not have to work out; that he was going to convey the Queen City farm to her; and that he was going to have it deeded to her so they could not beat her out of it.
Mr. Rhinehart testified that he knew Mr. Collins and the land in question; that he went to Mr. Collins with a view of purchasing the land, but he refused to sell it, and assigned as his reason for such refusal that he thought he would give it to Iowa.
Mr. Masterson testified that he resided near the Queen City farm, and that. Mr. Collins frequently stayed with him while visiting the farm, and that upon one or more of those occasions he heard Mr. Collins say that he was going to give the farm to the young lady, whose name he did not know at the time, but subsequently learned that her name was Iowa.
Mr. Burchett, who seemed to be an absolutely disinterested witness and a gentleman of good sense, tes
If this evidence is true, and if it was not the intention of Caleb Collins to make a voluntary gift of the Queen City farm to Iowa Harrell, then there can he no reasonable doubt about the fact that they entered into the contract mentioned, and that she fully and faithfully performed her part of it, and that he at all times fully intended to execute his part thereof by conveying the farm to her by proper deed of conveyance, which was prevented by his unexpected death.
Counsel for respondents insist that this evidence is not worthy of credence, and for that reason the trial court disbelieved it and found the issues against the intervener. The basis of that contention is predicated upon the facts that several of the most important witnesses for her are either blood relations, or that some of them have claims pending against the estate, and that they testified in her behalf in consideration of and in expectation that she and her relations would in turn testify for them, and thereby establish their respective claims; and by that fraudulent conspiracy to rob and loot the estate of Caleb Collins, deceased. That is a
It will be noticed that the majority opinion lays great stress upon the fact that James Collins and Ezekiel Dooley, two of Iowa Harrell’s witnesses, had those claims pending against the estate of Caleb Collins, and it holds that their testimony is unworthy of belief for that reason; yet there was not a word of testimony introduced tending in the remotest degree to show that either of them were not just demands, or that a fraudulent conspiracy had been entered into between them to loot and sack the estate of Caleb Collins. There was no charge of conspiracy presented by the pleadings, and she was given no opportunity to meet such an issue. Without plea or evidence it is arbitrarily held that there was a conspiracy existing between them, simply because they had claims pending against the estate, and, as before stated, without a word of testimony tending to show that they were unjust, the majority opinion virtually holds such conspiracy actually existed and that all of the claims were fraudulent and that none of her witnesses were worthy of belief.
In reply to that contention it might be suggested that those facts are more in the nature of coincidences rather than evidence of the existence of fraudulent conspiracy. The existence of those facts is not un
If a child of that age had made a contract of the character mentioned, who would most likely know of it? Of course, her mother and relations.
Many estates have one or more claims presented against them, and it is not unusual for the owner of one claim to have knowledge of the existence of the other which would make him a material witness if the claimant should see proper to use him as such. Fraud is never presumed to exist, hut must be established by evidence just as any other fact must be established; and in the absence of all such evidence, as in this case, the court would not be justified in drawing the conclusion from those facts alone that a conspiracy existed among the various persons mentioned to defraud the ■estate. "While such interest should be weighed and'considered' along with all the other facts and circumstances in determining what weight should be given to their testimony, yet their coexistence alone should not, as a matter of law, brand all of the claims as spurious and fraudulent, as is virtually held in this case.
Besides all that there is not a breath of suspicion cast against the honesty, morality or veracity of any of the witnesses, except in one or two instances where it was attempted to show contradictory statements regarding matters which were wholly irrelevant and immaterial to the issues involved in the case.
TJnder our statute interest alone in the result of a suit does not disqualify a witness from testifying, but such interest may be shown to affect his credibility, but that alone, as a rule, does not destroy the total weight of such witness’s testimony. If that were true, then it would be a vain and useless thing to place an interested person upon the witness stand for any purpose.
We have carefully considered the testimony of respondents’ witnesses, and there is nothing therein to
This brings us to tbe consideration of respondents’ second contention, namely, that even though the court should believe that the testimony of intervener’s witnesses is true, yet it is insisted that all the evidence shows that Mr. Collins only intended to make a voluntary gift of the farm to appellant, and not a contract by which he bound himself to convey it to her; and that being true, a court of equity will not specifically enforce such proposed gift.
If we correctly understand counsel for respondents, this is their main reliance in this case, and that they lay much more stress upon this contention than they place upon the question previously discussed regarding the credibility of the-witnesses.
But preliminary to the observations I desire- to make in this case, I wish to state that I am not unmindful of the importance of section 3418, Bevised Statutes 1899, commonly called “The Statute of Frauds,” which requires all contracts for the sale of land to be in writing, and signed by the party thereto who is sought to be charged thereby.
So impressed am I with the wisdom of that enactment, that I am thoroughly convinced in my own mind that one of the most serious errors this court has ever committed was in holding that when such a contract' has been executed by one of the parties thereto, equity should relieve him from the operation of that statute. By so doing’it has written into the statute an exception which the Legislature never enacted or intended to exist. That judicial interpolation owes its existence to what is known in the law as “hard cases make bad laws.” That is literally true in this instance, and if the courts would only bear in mind when dealing with hard eases that bad laws produce so much more wrong and injustice than hard cases do, then I apprehend there would be less bad laws and fewer unjust decis
Before concluding these preliminary remarks I wish it to be distinctly understood that I do not mean hereby to cast any aspersion whatever upon the character or reputation of Mr. Caleb Collins, but, upon the contrary, by reading this record, one must conclude that he was a good, just and charitable man; and if Iowa Harrell is deprived of that which she has earned by serving him, then that wrong and injustice cannot be charged up to him, but must be laid at the door of those who are claiming unjustly that which they did not earn.
If we were to ignore the relations that existed between Mr. Collins and the appellant at the time of and prior to the date of the alleged contract, and also disregard the testimony of Mrs. Harrell, Ezekiel Dooley and his wife, Stella Dooley, and consider only the testimony of the remaining witnesses introduced by her, in conjunction with respondent’s evidence, then there would be some force and plausibility in that contention, for when thus segregated and considered alone it might look as though he intended to deed her the farm as a voluntary gift or donation; but when we consider the fact that Mr. Collins was not related to appellant, that he had no natural claims upon her; that she owed
' When the entire case is thus viewed, the conclusion to our minds seems to be irresistible that the contract stated in the petition was actually entered into by them.
And if we view and weigh the testimony of the other witnesses in the ease in connection with and in the light of the above facts, it corroborates and strengthens the position above stated, rather than militates against it, for the reason that it shows that the statements of Mr. Collins made to the various witnesses regarding his intention to deed the farm to Iowa related to and were prompted by his contractual obligation to do so, and not out of a spirit of charity and benevolence entertained by him, and thereby ignore all legal and moral obligations he owed her for the years of care and toil she had so faithfully performed for him. Such a view by Mr. Collins of the situation would have detracted from the merits and virtues of appellant by treating her services as practically worth
The fact that he had a fixed and definite purpose to deed the farm to her and to will his other property to his kindred indicates that his intention was not to make her a present of the property hut that it was his intention to convey it to her in fulfillment of his contract with her. While, upon the other hand, if it. had been his intention to make a gift of the farm to her, he would most likely have said that he intended willing it to her, as that was the mode by which he repeatedly expressed his intention of giving away his other property.
We are, therefore, clearly of the opinion that the contract stated in the petition was made and entered into by and between Mr. Collins and appellant, and that it was fully and completely executed on her part, and to deny specific performance of the contract at this time would work irreparable injury to her, deprive her of all compensation for the years of faithful care taken of him, honest services performed in his behalf, and turn that justly earned compensation over to his collateral kindred, who had no moral or equitable claims upon him or his bounty outside of the cold letter of the Statute of Descent and Distribution. Such a descent and distribution of the land in question under the facts and circumstances of this case would be unjust, inequitable and shocking to the mind of the chancellor, and should not be tolerated for a moment.
II. It is next insisted by counsel for appellant that if it be conceded, the contract was actually entered into by and between Mr. Collins and Iowa Harrell, ■ still specific performance of the contract should be denied,
It is a conceded fact that she did leave the home of Mr. Collins in the year 1902 for a period of about four months and resided with her mother during that time in the town of Leroy, Kansas, hut why she left and whether it was with or without his permission does not satisfactorily appear from the record.
It is true, one witness for respondents testified that Mr. Collins stated to him, not, however, in the presence or hearing of Iowa or her mother, that he thought they left him for the purpose of compelling him to convey them some of his property, hut that he did not propose to do so.
Conceding the competency of that evidence, without deciding it, we are of the opinion that it is entitled to no weight or consideration, for the reason that no such issue was made in the case, and even though it had been made, the undisputed evidence shows that she returned to his home within a few months and resumed her former position and performed the same services without objection on his part from that time until, the day of his death, which was in August, 1905. Under those facts he himself would not he heard to say, .after accepting her services for a period of three years or more after her return, that she violated the contract, and on that account she should not he permitted to recover, much less should his collateral heirs be permitted after his death to enter that objection against her right to recover in this case. Besides all that, Mr. Burchett testified that in a conversation he had with Mr. Collins while appellant and Her mother were, in Leroy, Kansas, he said that they had. advanced schools out there, and that he intended to fix up his business the best he could and go out there and make his home with appel
III. Learned counsel for respondents insist and argue with much force and ingenuity that Mrs. Harrell was not a competent witness to testify in. the case, for the reason, alleged, that she was a party to the contract, that is, her assent to the contract made between Mr. Collins and her infant daughter was necessary before the contract would have become binding on the latter. Concede that to be true, then the contract would have been only voidable .and not void on account of her infancy, and after she went on and faithfully performed her part of it, it would not now lie in the mouths of respondents, after the contract had been fully executed, to say it was voidable at the time it was entered into, because of her infancy. That being true, it was wholly immaterial in so far as the binding force of the contract was concerned whether her mother, her natural guardian, assented to the contract or not.
But returning to the question in hand. There is not a scintilla of evidence in the case which tends to show Mrs. Harrell was a party to the contract, or that she was requested to, or ever gave her assent to her daughter’s entering into the contract in question, unless silent acquiescence might be considered such assent ; but, however that might be, such assent would not make her a party to the contract in a legal sense. If so, then all parents would become parties to contracts made by their minor children, provided they knew of
"We must, therefore, hold that Mrs. Harrell was not a party to the contract within the legal signification of those words, and, consequently, that she was a competent witness in the case.
IV. After deferring somewhat to the findings of the trial court in this cause, a careful reading of the evidence and a due consideration thereof have fully convinced us that the findings of the learned court are against the weight of the evidence, as disclosed by the record; and that the judgment rendered thereby in favor of respondents is for the wrong parties, and is against right, justice and equity.
We, therefore, under and by authority of the law as stated in the case of Gibbs v. Haughowout, supra, reverse the judgment of the lower court, and remand the cause with directions to that court to enter a decree in favor of appellant, specifically enforcing the contract stated in her cross-bill according to the prayer thereof.
