118 Wash. 56 | Wash. | 1921
— A. J. Herren died intestate February 16, 1920, in Lewis county, leaving surviving bim Ms widow, Jane Herren, and tbeir cMldren, Hugh Herren, Susie Herren and E. Benjamin Herren, as Ms only beirs at law. On June 28, 1920, E. Benjamin Herren died intestate in Lewis county, Washington, leaving surviving him his widow, Elma S. Herren, and their minor son, Robert D. Herren, as his only heirs. On July 22, 1920, Elma S. Herren was appointed administratrix of the estate of E. B. Herren, and also was appointed general guardian of their minor son, Robert D. Herren, and qualified in each of those capacities. In August, 1920, Samuel L. Herren was appointed administrator of the estate of A. J. Herren, deceased, the widow having waived her right.
In their action for specific performance, respondents alleged that there was an oral agreement made and entered into between E. B. Herren and his father, A. J. Herren, in effect as follows:
“That in consideration of the services rendered by E. B. Herren in liquidating several thousand dollars of indebtedness incurred by A. J. Herren, for which said premises were bound, and in further consideration that the said E. B. Herren will continue to reside upon said premises, orally agreed to convey the whole of said premises to E. B. Herren by a good and valid deed of conveyance, with the understanding that the said A. J. Herren and wife could, during their lives, occupy the residence upon said premises, and did then place said E. B. Herren in possession of the whole of said premises, which possession he retained to the time of his death, and that no time was specified for the execution of said deed, but it was understood by the*59 parties mailing said oral agreement that the said A. J. Herren and Jane Herren, upon demand would each, hy a valid deed, convey an undivided one-half interest in said premises to said E. B. Herren. That said oral agreement was negotiated hy said A. J. Herren, and that the said Jane Herren agreed to abide hy what her husband did, and ratified, at all times up to the death of said E. B. Herren, the said agreement, and recognized the existence of said agreement as their valid obligation.”
The complaint further alleges that E. B. Herren, relying upon that agreement, took possession of the premises, and thereafter spent many thousands of dollars in clearing, fencing and repairing buildings and preparing the premises for suitable cultivation and occupancy, and otherwise improving the property, and in the paying of taxes and defraying of other expenses, all of which was done with the knowledge and consent of A. J. Herren, and that E. B. Herren exercised the right of ownership of the premises; and that, on or about September 6,1919, the parties interested made a division of all the real estate, and, among other transactions, A. J. Herren made, executed and delivered, hy and with the consent of his wife, Jane Herren, a deed of an undivided one-half interest in and to all the home place involved.
The defendants answered the complaint of respondents and set up a general and specific denial of all the material matters set out in the complaint; and by way of affirmative defense, allege that the property described in respondents’ complaint was at all times the community property of A. J. Herren and Jane Herren, his wife; that they lived and resided upon the place for upwards of thirty years, paid all the taxes, and that no one questioned their ownership or possession; that A. J. Herren died intestate on February 17, 1920; that the widow, Jane Herren, according to the law of de
They further allege that the deed attempted to be procured by E. B. Herren from A. J. Herren of an undivided one-half interest in the Herren home place was procured at a time when A. J. Herren was without sufficient mental capacity or understanding to make or deliver a deed; that he did not know what he was doing, by reason of his extreme illness, and that the deed mentioned in the complaint was void under the statute, in that it was not joined in by the wife of A. J. Herren, the property being community property.
It is further alleged that the oral agreement alleged by respondents to convey was void, not having been in writing and relating to real property.
The trial court made findings in favor of respondents, decreeing specific performance of the alleged oral contract to convey the 308 acres of land, and finding that the personal property upon the farm, consisting of stock, machinery and implements, was the property of the estate of E. B. Herren, and that the $3,000 in United States liberty loan bonds, which had been purchased by E. B. Herren, was the property of his estate, and that the $9,000 worth of United States liberty loan bonds, and some $6,000 worth of municipal and county bonds, were the property of the estate of A. J. Herren, deceased.
Forty-one errors are claimed by appellants, some of which are well taken, but we shall not discuss them all separately. Among other things, the court made some findings which there is absolutely no evidence to support, and we presume were made by inadvertence at the request of prevailing counsel. The court, also, in summing up the evidence, appears to have made several incorrect statements, due, no doubt, to lapse of memory after the conclusion of a very lengthy and complicated trial. We shall, however, consider all evidence which is here which should have been admitted, and disregard any which should have been rejected by the trial court, since we must try the case de novo upon the whole record.
Prior to the year 1887, A. J. Herren purchased the 308 acres of land in controversy. In that year he moved upon the property with his family, consisting of his wife and six children — five sons and one daughter — the sons’ names being Harry, Hugh, Ben (or E. B.), Samuel (or S. L.), and Judson, and one daughter, Susie. The family, with the exception of those who
When the sale took place under the mortgage foreclosure in 1895, the father, rightfully taking advantage of the statutes regarding possession of the farming lands during the period of redemption from sale, leased the home place to Hugh for the year of redemption, at the time advising Hugh that this was done so that the crops then growing on the place during the period of redemption might be secured. He also sold the saw mill which they had owned for about $2,000, and turned the money received from the sale over to Hugh to be used in working the home place and in the purchase of stock and implements necessary to operate the same. During this period the father took his two younger
After the property had been repurchased, and after Hugh left, Ben became his father’s superintendent and chief man on the place and took the active management and control of it, by and with his father’s consent, and directed practically all of the business in regard to the operation of the farm. The father and mother, and for some time the brother Sam, and the daughter, also remained upon the place and worked thereon. The father aided, assisted and advised Ben in the control and management of the place, mended implements and
“ ‘Ben looks after all my business and whenever he wants to make out any checks it is all right with me. Whatever he does is all right with me.’ We were authorized to pay any checks drawn by E. B. Herren.”
The checking account of the father averaged, ordinarily, about ten times that of Ben, he stated.
Ben retained the management of the place for twenty-five years, until his death. During all that time
About September 6,1919, A. J. Herren was extremely ill and expected to die, and at that time Ben called on Bran, president of the Toledo Bank, to come to his ■ home. Ben told him that his father was not very well, and he wanted to dispose of his property so it would not have to go into court in case he died. Pour deeds were made; one to a piece of North Carolina land, not disclosing to whom it was made, but possibly to perfect some old title; another to Hugh Herren for a forty-one acre tract that lay outside of the 308 acres; another to Sam for a tract known as the “Worthington Tract,” of about 108 acres, part of which was valueless; and another to Ben of an undivided one-half of the 308 acre home place. All these deeds were made at the instance of Ben. All of them were acknowledged
There is no evidence that Ben Herren contributed anything to improve the place after he was put in active control of it, except what he obtained from the property and the proceeds of his labor upon the place. There is no evidence that there was any agreement as to the division of the proceeds at any time. The farm and the proceeds thereof and the acquisitions of all of them seem to have been considered mere common funds by all of them. They let Ben take what he pleased, and while he'did not attempt to override his father and mother, or the rest of them, he became prosperous by his use of the place and its proceeds. The stock and implements that were upon the place when he took control were stock and implements that had been acquired by Hugh during his management, from the proceeds of the $2,000 which had been turned over to him, and the proceeds of the farm. Afterwards, through his accumulations from the moneys which he was allowed to retain willingly by the other members of the family, Ben became fairly prosperous, and during the" war bought $3,000 worth of bonds, and purchased the forty acres deeded to Hugh on September 6, 1919, for $3,000, paying $1,500 in cash and borrowing the balance from his mother.
It is insisted that, when Hugh took title to the property in his own name, a resulting trust was created instanter in favor of his brother Ben for an undivided one-half interest therein, because bis brother Ben had furnished one-half of the purchase money to purchase the property. There is absolutely no evidence that Ben had earned one-half of the purchase money, or any definite amount. All the evidence there is is that Ben worked upon the place with Hugh, while Hugh was manáging it, and that he went into partnership with Hugh in the butcher business for about three years from 1900, and that they paid part of the purchase price which was paid to repurchase the place from funds derived from the partnership in the butcher business. How much was not shown. It is shown that Hugh paid $1,600 of the funds to repurchase the place from moneys he earned in raising hops at Puyallup, in which Ben had no interest whatever. The only evidence of any right of Ben’s to the conveyance of the place is that of two witnesses who had been hired hands upon the place, who testified in one case that the father told him that if he had his way Ben was to have the place; in the other instance, that Ben was to have the place. Neither one testified that the old gentleman told
Respondents contend, also, that giving Ben possession of the home place and allowing him to continue in possession for a long period of time was such a part performance as would entitle him to specific performance.
There was absolutely no change of possession, constructive or otherwise. Ben had been living with his parents since majority, and he remained. They occupied all things in common. Even Samuel, who lived on an adjoining tract of ten acres, built a store on the 308 acre tract, near his residence, about eighteen years before 1920, which building was worth about $1,000, and which still remains on the land, and did business from the store for a number of years. He discontinued it during war times. He also pastured, in common
We do not agree with appellants’ contention that an oral agreement to convey land must be shown by proof that removes all uncertainty. It is sufficient if, from the whole evidence in the case, the contract can be determined with reasonable certainty. It is the duty of the court to ascertain, if it can, what the terms of the contract were, although the evidence may be somewhat conflicting. Mudgett v. Clay, 5 Wash. 103, 31 Pac. 424; Coleman v. Larson, 49 Wash. 321, 95 Pac. 262; Velikanje v. Dickman, 98 Wash. 584, 168 Pac. 465.
But, as said in the last cited case, every case of this character essentially rests upon its own facts. In this case, there are no such facts as existed in the Velikanje case. In that case there were declarations by the al
That is true also in this case; but in this case the alleged grantor had never made any admissions or declarations to third persons that he had made an agreement to convey the place to Ben. And since it was community property, as alleged by respondents and admitted by them at the trial, and, as we hold, conclusively shown by the evidence, he could not convey or incumber the property without being joined therein by his wife.
There is evidence, however, both by act and inference, that it had been agreed that Ben was to have half of the home place, or an undivided one-half interest. Exactly what is not known, except as shown by the deed of September 6, by which the father, at Ben’s own request, conveyed an undivided one-half interest to Ben. These circumstances tend to prove that Ben did not have an agreement for the entire place, or expect a conveyance of the entire place. "When both were alive, Ben asked his father for what had either been agreed upon by them or was considered his right. He did not ask his mother to join in the deed of the half interest of the home place, although he asked her to join in every other deed that was executed at that time. He might have thought that an undivided one-half interest could be conveyed by his father without his mother joining,- and his mother testified that she might have been willing, had she been so requested, to join in a deed to Ben of an undivided one-half interest; and since she made this admission, we are inclined to believe that she must have understood, during all those
It is our judgment, therefore, that specific performance be enforced to the extent of a conveyance by Jane Herren and by the administrator and heirs of A. J. Herren to the heirs of E. B. Herren of an undivided one-half interest in the 308 acres of land in controversy. The evidence in the case, equity and good conscience do not justify our going any further.
As to the stock, implements and machinery used in farming the premises, there is no doubt that they were acquired and accumulated in exactly the same way. Undoubtedly, if he gave Ben an undivided half of the land, the father also gave Ben an undivided one-half of all the personal property upon the place used in farming it, and the accumulations and increase thereof. There is no evidence except the circumstances justifying that, and there is absolutely no evidence that the personal property was given to Ben or had been purchased by Ben, or had become Ben’s in any other way. The trial court decreed that the estate of E. B. Herren was entitled to all the stock, implements and machinery upon the home place. That decree .will be modified so that the decree will be that each estate, and the administrator or administratrix thereof, owns an undivided one-half interest in all such personal property, except certain specific items which the trial court found belonged individually to one or the other of the parties, which will not be changed.
The $3,000 of liberty loan bonds, which were decreed
The $9,000 of liberty loan bonds, and the other municipal bonds, were all proven incontrovertibly to have been purchased by A. J. Herren, and to belong to his estate. That part of the decree will stand as to them.
The $1,000 worth of savings stamps, which were given to the daughter, were conceded to have been her property and will remain the same.
The title to two other tracts of real estate were quieted in the estate of E. B. Herren, of which appellants complain that since that was not prayed for by respondents in their complaint and is not involved in this action, was erroneous. Since no one was harmed by that, if it is any benefit to the estate of E. B. Herren, we will not interfere with it.
The cause is remanded with instructions to the lower court to proceed in conformity with this opinion. Appellants, having recovered substantial benefits by their appeal, will be allowed their costs on appeal.
Parker, C. J., and Hovey, J., concur.
Mackintosh and Main, JJ., concur in the result.