Holder v. HarrisHolder v. Harris
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1. Under Section 539, Or. L., acceptance of notice of appeal signed in name of attorney “by J. H.” held insufficient return, it not appearing that attorney was absent from his office, or that “J. H.” had charge thereof or authority to accept.
Appeal and Error.
2. On plaintiff‘s appeal from ruling on demurrer by appearing defendants in suit to determine title, service of notice on defendant who had not appeared held unnecessary, in view of Section 550, Or. L..
Pleading—Complaint, Tested by Demurrer, is not Entitled to Liberal Construction in Favor of Plaintiff, on Appeal.
3. Where complaint was tested by demurrer in Circuit Court, and demurrer was sustained, it is not entitled to liberal construction in favor of plaintiff, on appeal.
Contracts—Bona Fide Compromise Settlement of Disputed Claim will Support Agreement to Convey Property, Where There is Foundation for Claim.
4. Compromise settlement of disputed claim, made in good faith, will support agreement to convey property, provided there is some foundation for claim, and such compromises when settling family disputes are favored by law.
Wills—Sister‘s Surrender of Claim Against Brother for Share of Mother‘s Property Acquired by Brother Before Her Death Held Insufficient to Support Agreement to Will Property to Sister‘s Child (Or. L., § 799, Subds. 1, 7, 8, 19).
5. Sister‘s surrender of claim against brother for share of mother‘s property acquired before her death by brother held not sufficient to support agreement of brother and wife to will property to sister‘s child, in absence of facts showing belief as to validity of claim, reasonable, though he admitted that sister was entitled to share of property, since there is presumption that he obtained property from mother lawfully, in view of Section 799, subdivisions 1, 7, 8, 19, Or. L.
Frauds, Statute of—Brother‘s Oral Agreement to Will Property in Consideration of Sister‘s Forbearance to Sue on Outlawed Claim Held Unenforceable Under Statute.
6. Oral agreement under which brother agreed to will property obtained from mother to sister‘s child, and sister refrained from bringing suit for share of such property, cannot be enforced, in view of statute, where sister had not brought action for nine years after mother‘s death, before making such oral agreement; forbearance not being sufficient consideration to take agreement out of statute, notwithstanding that there was no remedy if oral contract was void.
Wills—Valid Contract to Will Property is Enforceable.
7. Valid contract to dispose of property by will will be enforced.
Frauds, Statute of—Contract to Devise must be in Writing.
8. Contract to devise real estate is contract to convey, and must be in writing to be valid.
4. See 5 R. C. L. 878.
5. See 5 R. C. L. 879, 882.
7. See 25 R. C. L. 306.
8. See 25 R. C. L. 585.
9. One entering oral contract for devise of real estate must be charged with knowledge of statute of frauds, where she was represented by counsel.
ON MOTION FOR MODIFICATION.
Appeal and Error—Supreme Court will not Consider Affidavits Touching Merits on Motion to Modify Decree Merely by Remanding Cause.
10. Supreme Court will not consider affidavits touching merits, on motion to modify its decree for mere purpose of having cause remanded.
Appeal and Error—After Remand on Appeal from Dismissal After Sustaining Demurrer to Complaint, Court Below may Determine Whether Defendant may Answer, but Discretion is not Arbitrary.
11. When Supreme Court does not make final disposition of cause on appeal from decree of dismissal after sustaining demurrer to complaint, but remands it to court below, latter may determine in first instance whether defendant shall be permitted to answer, but such discretion is not arbitrary and is always to be exercised in furtherance of justice.
Appeal and Error—Generally, Case will be Remanded to Circuit Court for Disposition, Where Order Sustaining Demurrer to Complaint is Affirmed.
12. Generally, where Circuit Court‘s order sustaining demurrer to complaint is affirmed by Supreme Court, case will be remanded to Circuit Court to be disposed of agreeably to justice.
Appeal and Error, 3 C. J., p. 1218, n. 9, p. 1235, n. 22; 4 C. J., p. 747, n. 34, p. 1224, n. 9, p. 1225, n. 10, 11, 31, 32, p. 1226, n. 35.
Compromise and Settlement, 12 C. J., p. 324, n. 22, p. 328, n. 36, p. 337, n. 6, p. 339, n. 19, p. 362, n. 87.
Frauds, Statute of, 27 C. J., p. 208, n. 82.
Specific Performance, 36 Cyc., p. 644, n. 3 New, p. 646, n. 13, p. 650, n. 33, p. 691, n. 54, p. 692, n. 57, p. 736, n. 52..
Wills, 40 Cyc., p. 1063, n. 54, p. 1064, n. 57, p. 1072, n. 31.
MOTION TO DISMISS APPEAL OVERRULED.
“If upon an attorney, it may be made during his absence from his office by leaving the copy with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office.”
It does not appear that Lofgren was absent from his office, or that the mythical “J H” was in charge of the office, or a clerk therein; or, that he had any authority to accept service. The return is insufficient. This brings up the question as to the necessity of serving Sutherlin.
If Sutherlin is an “adverse party” within the meaning of the statute, appellant is clearly out of court. But, in our opinion, he is not such an adverse party as necessitated the service of a notice of appeal on him.
Section 550, Or. L., inter alia, provides:
“If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit.”
We italicize the last line because it is fatal to respondents’ contention. Sutherlin did not appear in
The motion to dismiss is overruled.
MOTION OVERRULED.
ON THE MERITS.
This suit was instituted to impress a trust upon all of the property belonging to Annie L. Kent at the time of her death which occurred October 17, 1924. The plaintiff, Eva Holder, is the daughter of Frances A. Holder who died December 27, 1920, and the granddaughter of Deborah B. Kent who died in 1909. The defendant Harris is the administratrix of the estate of Annie L. Kent, deceased; the defendant Willula Kent Mingo is an adopted daughter, and the defendant Fred Sutherlin is a son of the said Annie L. Kent, deceased. William G. Kent who died August 11, 1924, was the son of the said Deborah B. Kent, the husband of the said Annie L. Kent and the brother of the said Frances A. Holder, mother of the plaintiff. It is alleged in the complaint among other things:
“III. That said William G. Kent and Frances A. Holder were sole surviving children and sole heirs-at-law of Deborah B. Kent, who died intestate in Multnomah County, Oregon, on or about March 9, 1909; that during the lifetime of said Deborah B. Kent, said William G. Kent and Annie L. Kent, his wife, from time to time and at various times obtained money and property from said Deborah B. Kent, the exact amount of which is to plaintiff unknown, but she has been informed and believes and therefore avers that the same amounted to a large sum and comprised practically all of the property and money accumulated by the said Deborah B. Kent; that by reason thereof said Deborah B. Kent left no property or estate standing in her own name at the time of her death in
1909 and no estate to probate, and the same was never administered. “IV. That after the death of said Deborah B. Kent, and about the years 1911 or 1912, a dispute and controversy arose between the said Frances A. Holder and the said William G. Kent and Annie L. Kent respecting a division of the property of Deborah B. Kent theretofore obtained as aforesaid by William G. Kent and Annie L. Kent; that said Frances A. Holder as one of the two sole surviving heirs of Deborah B. Kent, believing herself entitled to a portion of the property which had passed into the possession and control of William G. Kent and Annie L. Kent during the lifetime of Deborah B. Kent; demanded an accounting thereof and a division of the proceeds whereby she would share in her mother‘s estate, but said William G. Kent and Annie L. Kent refused to render any account or to make any division of said property or to pay or convey any portion thereof to her, although admitting and conceding that said Frances A. Holder was entitled to a part thereof; that thereupon and after said controversy and dispute had continued for two or three years and had become a family quarrel, said Frances A. Holder employed the late Judge Lionel R. Webster as counsel and took legal advice respecting her rights and her claim in and to said property and against the Kents, and in pursuance of such advice authorized and instructed her said attorney to demand an accounting and obtain for her from the said Kents such money and property as rightfully belonged to her.
“V. That thereafter said Frances A. Holder, through her said attorney, made efforts to obtain a return of some part of the aforesaid property, but without success, and finally made formal demand upon William G. Kent, and Annie L. Kent for the interest of Frances A. Holder in the property which the said Kents had acquired from Deborah B. Kent as aforesaid, and said Frances A. Holder, by her said attorney, threatened to bring suit against the said Kents unless they made a satisfactory adjustment of
her said demand; that the Kents there and then, to-wit: about the month of April, 1918, again admitted some obligation to said Frances A. Holder respecting her claim for a part of her mother‘s property, but expressed their unwillingness to divide any property with her or to convey or deliver any property to her on the ground that she could not properly care for and manage the same; that the Kents there and then offered by way of settlement and compromise of Frances A. Holder‘s demand, that if they were permitted to retain said money and property, in its entirety and without division, during their lifetime, they would will the whole of the property possessed by them at the time of their deaths and leave it to Eva Holder, the only child of Frances A. Holder, who is the plaintiff herein; that in order to compromise the controversy and settle the then existing controversy and family dispute and said demand of Frances A. Holder, it was then orally agreed that in consideration of her refraining from the commencement and prosecution of any suit against the said William G. and Annie L. Kent respecting her claim against them, and of permitting them to retain, manage and enjoy all of the property they had during their joint lives, they, the said Kents, would leave the whole of it, together with increase, profits and accretions thereof, by will to plaintiff, Eva Holder, the daughter and sole heir of Frances A. Holder; and in consideration of said promise and agreement on the part of William G. Kent and Annie L. Kent said Frances A. Holder promised and agreed to permit them to retain, manage and enjoy said property during their joint lives, and agreed to refrain from disturbing their possession and use of said property during their lifetimes, and from instituting or prosecuting any suit or action against them in relation thereto.”
It is further alleged that the said Frances A. Holder and the plaintiff, Eva Holder, complied in all respects with and observed the terms of said compromise and settlement, brought no suit or action of
COSHOW, J.—3. The complaint brought here by this appeal is the fifth amended complaint. It hav
4. The law is established that a compromise settlement of a disputed claim made in good faith is sufficient consideration for a contract and will support an agreement to pay money or convey property. Such a settlement merges all matters, claims and preexisting causes of action included in the compromise: Hirsch v. May, 75 Or. 403, 407 (146 Pac. 831); Roane v. Union Pac. Life Ins. Co., 67 Or. 264, 272 (135 Pac. 892); Klussman v. Day, 107 Or. 109 (213 Pac. 787, 214 Pac. 348); 12 C. J. 337, § 33, p. 339, § 34. Such compromises when settling family disputes are favored by law and enforced by the courts: Goodin v. Cornelius, 101 Or. 422, 431 et seq. (200 Pac. 915); Kelley v. Devin, 65 Or. 211, 218 (132 Pac. 535); Hardin‘s Admrs. v. Hardin, 201 Ky. 310 (256 S. W. 417, 38 A. L. R. 756); 12 C. J. 362; 5 R. C. L. 878, § 3. In order to constitute a consideration for such a compromise there must be some foundation for the claim upon which the settlement is based. The case of Smith v. Farra, 21 Or. 395 (28 Pac. 241, 20 L. R. A. 115), is a leading case, and in page 404 of the official report, after a thorough analysis of the subject and a number of authorities, expresses the principle thus:
“As a result from the authorities, we think a doubtful or disputed claim, sufficient to constitute a good consideration for an executory contract of compromise, is one honestly and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he has a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be wholly unfounded.”
5. The principle is well illustrated in the case of Purviance v. Purviance, 14 Ind. App. 269 (42 N. E. 364), cited and relied upon by plaintiff. In the Purviance case the plaintiff had a claim for work and labor which he forebore litigating upon the promise of the defendant to provide for him in her will. Relying upon this promise he refrained from pressing his claim against the estate of promisor‘s husband, and his forbearance was held to be sufficient consideration to support the promise of the defendant. In the case under consideration there is nothing alleged in the complaint upon which to base a promise, unless it be the admission of the Kents that Frances A. Holder was entitled to a part of the property obtained by Kents from Deborah B. Kent.
The allegations that the promisors, during the lifetime of said Deborah B. Kent from time to time and at various times, obtained money and property from said Deborah B. Kent is not a sufficient foundation for a compromise agreement. The presumption of law is that the money and property alleged to have been obtained was obtained lawfully. There is no allegation that the money and property was unlawfully or wrongfully procured from the said Deborah B. Kent. The presumption of law is that it was lawfully obtained: Section 799, subds. 1, 7, 8, 19, Or. L. There is no allegation in the complaint to the effect that the said promisors owed either the said Deborah B. Kent or the said Frances A. Holder any sum whatever. Some two or three years after the death of the said Deborah B. Kent a dispute and controversy arose be
“While there is some authority to the effect that the compromise of a disputed claim will support an express promise, although the claim is without merit or foundation, particularly where an action has been instituted, the surrender of a claim which is entirely
without foundation either in law or in equity does not, according to the great weight of authority, afford a sufficient consideration for a compromise.” 12 C. J. 327, § 18.
Oregon & C. R. R. Co. v. Potter, 5 Or. 223, 231; Davisson v. Ford, 23 W. Va. 617; City Street Improvement Co. v. Pearson, 181 Cal. 640 (185 Pac. 962, 966, 20 A. L. R. 1317); Maull v. Vaughn, 45 Ala. 134; Thayer v. Buchanan, 46 Or. 106, 110, 111 (79 Pac. 343); Roane v. Union Pac. Life Ins. Co., 67 Or. 264, 272, 273 (135 Pac. 892); 5 R. C. L. 879, 882, §§ 4, 5, and 6.
All that plaintiff‘s mother did according to the allegations of the complaint was to surrender a claim which was entirely without foundation. This is not sufficient acording to the great weight of authorities.
6-9. But assuming without deciding that the admission of the Kents that Frances A. Holder was entitled to a part of the property obtained by them from Deborah B. Kent rendered Frances A. Holder‘s claim sufficiently doubtful to constitute a valuable consideration for the agreement to will the property to plaintiff it does not follow that the complaint states sufficient facts. The agreement relied upon by plaintiff is oral. It requires the transfer of real property. The agreement is within the statute of frauds, unless removed therefrom by part performance. The part performance relied upon is refraining from pressing her claim. She did nothing; parted with nothing. No litigation had been instituted. No change took place in the property or the relation of the parties thereto. There is no doubt that a valid contract to dispose of property by will will be enforced: Popejoy v. Boynton, 112 Or. 646 (229 Pac. 370, 230 Pac. 1016); Bagley v. Bagley, 110 Or. 368, 371 (222 Pac. 722);
In Johnson v. Hubbell, above, relied on by plaintiff, we take the following excerpt from 10 N. J. Eq. 338 (66 Am. Dec. 778):
“It is said that this agreement was in parol, and is therefore contrary to the statute of frauds. But although this agreement was a mere parol one, if there was a part performance of it, of such a character as, upon the principles recognized and acted upon by this court, will take a parol agreement out of the statute, then there is nothing peculiar about an agreement of this kind to exclude it from the operation of those principles. If one party to a parol agreement has wholly or partially performed it on his part, so that its non-fulfillment by the other party is a fraud, the court will compel a performance. In this case, the son performed his part of the agreement. He paid a valuable consideration, and parted with his property.”
In the instant case the promisee did nothing but to forbear suing on an outlawed claim based upon her belief without the statement of any facts as a foundation for such belief.
The fact that the plaintiff will have no remedy if the oral contract upon which she depends be held to be void is not sufficient reason for setting aside the statute of frauds. It is hard to imagine any case where the statute of frauds would be applicable if one party to the oral contract can have the benefit of such
“When an enactment expressly declares that an agreement for the payment of a commission for securing a purchaser of land is void, unless it is in writing and signed by the owner of the real property, the rule is well established that, in the absence of a written contract, a full performance of the services by the broker does not take the case out of the statute of frauds.” Sorenson v. Smith, 65 Or. 78, 88 (129 Pac. 757, 131 Pac. 1022, Ann. Cas. 1915A, 1127, 51 L. R. A. (N. S.) 612).
In the case last cited both parties to the contract were living. It would seem that there would be more reason for applying the statute of frauds where one or more of the parties to the alleged contract are not living. In Sorenson v. Smith, above, in page 90 of the official report we find:
“The purpose sought to be accomplished by the enactment of the English statute mentioned (Stat. of Frauds) was to prevent the practice of frauds which were supposed to be perpetrated, and to preclude a resort to perjuries which were believed to have been committed when oral contracts respecting certain matters could be enforced upon evidence existing only of the recollection of witnesses. It is thought that the primary object that induced the enactment of our statute, hereinbefore quoted, demands that, where the original contract respecting the broker‘s compensation was not in writing, as required, the ratification can only be by a writing.”
In Hawkins v. Doe, 60 Or. 437, 441 (119 Pac. 754, 756, Ann. Cas. 1914A, 765), Mr. Justice McBride stated the rule thus:
“Where the contract rests wholly in parol and the alleged promisor is dead, courts should demand clear and satisfactory proof of the terms of the agreement,
and its strict performance by the promisee. Such cases furnish abundant opportunity for the perpetration of those frauds which it was the object of the statute to prevent by requiring the contract to be reduced to writing.”
Herr v. McAllister, 92 Or. 581, 587 (181 Pac. 741); Leadbetter v. Price, 103 Or. 222, 228 (202 Pac. 104).
“The statute of frauds is stringent in its provisions, and to avoid its effect the testimony must be clear and explicit, showing a state of facts referable exclusively to the contract pleaded.” Le Vee v. Le Vee, 93 Or. 370, 379 (181 Pac. 351).
It is true that the cases last cited involved the consideration of the testimony. It is also true that the complaint in this case alleges the effect and nature of the testimony upon which plaintiff relies to prove the alleged contract. From these allegations it appears that neither the plaintiff nor her mother, after making the alleged contract, did anything different from what they had done in relation to the subject matter prior to the time the alleged contract was made. For more than nine years after the death of Deborah B. Kent no action had been taken to recover any property obtained by the Kents from her. After the alleged contract nothing was done, not even an attempt to reduce the alleged contract to writing so that it could be proven under the law of the land. To allow such a contract to be proven would be equivalent to abrogating the statute of frauds.
Other interesting phases of the subject matter are presented in the briefs, but are not deemed necessary to be discussed in this opinion. The decree dismissing the suit is affirmed. AFFIRMED.
Burnett, C. J., and McBride and Rand, JJ., concur.
COSHOW, J.—10, 11. This cause has come on for hearing upon the motion of plaintiff for an order to modify the decree of this court affirming the decree of the Circuit Court by remanding the cause for further proceedings not inconsistent with the opinion as thus modified. The motion is opposed by defendants. Affidavits have been filed by both parties touching the merits of the controversy. This court will not consider such affidavits on a motion to modify its decree for the mere purpose of having the cause remanded. The correct practice was established comparatively early in this jurisdiction.
“* * * We therefore announce it as a rule of practice in such cases, that whenever this court does not make a final disposition of the cause, but remands the same to the court below, it will be open for that court to determine in the first instance whether the defendant shall be permitted to answer or not. This dis
cretion, of course, is a judicial discretion—not arbitrary—and is always to be exercised in furtherance of justice. This cause will therefore be remanded to the court below, for such further proceedings as may be proper. (McDonald v. Cruzen, 2 Or. 259.)” Powell v. Dayton, S. & G. R. R. Co., 14 Or. 22, 23 (12 Pac. 83).
This case has been cited with approval by many later cases: State ex rel. v. Metschan, 32 Or. 372, 388 (46 Pac. 791, 53 Pac. 1071, 41 L. R. A. 692); Fishburn v. Londershausen, 50 Or. 363, 377 (92 Pac. 1060, 15 Ann. Cas. 975, 14 L. R. A. (N. S.) 1234); State v. Warner Valley Stock Co., 56 Or. 283, 307 (106 Pac. 780, 108 Pac. 861); Turnham v. Calumet & Oregon Mining Co., 53 Or. 453, 459 (112 Pac. 711, 115 Pac. 157); Williams v. Pacific Surety Co., 66 Or. 151, 157 (127 Pac. 145, 132 Pac. 959).
12. The case of State v. Warner Valley Stock Co., above, involved a demurrer to the complaint. In page 307 of the official report it is held:
“The conclusion is that the demurrer to the complaint so far as it relates to the deeds of date August 21, 1891, and the one of date March 23, 1893, will be overruled. And as to the one of date January 18, 1883, it will be sustained.”
And on rehearing the court on page 312 said:
“As to the deeds of date August 21, 1891, and the one of March 3, 1893, no doubt the defendant is entitled to have leave to answer. As to the deed of date January 18, 1883, it is for the lower court to determine whether the plaintiff should be allowed to amend; * * *”
It thus appears that as a rule where the Circuit Court sustains a demurrer to a complaint, and its order is affirmed by this court, the case will be remanded to the Circuit Court to be disposed of there