161 Iowa 414 | Iowa | 1913
Thomas E. Ellwood and his wife, Sarah Ellwood, were childless. When plaintiff Alma Hnrst was eleven years of age, she was taken into their home, where she remained until their death. She was raised and educated by them and was treated as their own child. She conducted herself toward them as a dutiful daughter would toward parents. In May, 1906, she contemplated marriage with William J. Hurst. At that time her foster parents were advanced in years and in poor heálth. They were averse to her leaving them. It is alleged by plaintiffs that before their marriage Mr. and Mrs. Ellwood desired that plaintiffs take up their residence and live in the home of the said Ellwoods and nurse and care for them during the remainder of their lives; that said Ellwood and wife orally promised and agreed with plaintiffs that upon plaintiffs being united in marriage, if they would live in the home of said Ellwood and wife and nurse and care for them so long as they lived, plaintiffs should have and be vested with the absolute ownership and title to the real estate and the personal property therein, subject only to the use of said property by said Ellwood and wife jointly with plaintiffs so long as said Ellwood and wife should live; that in pursuance of said agreement plaintiffs entered into the possession of the property about May 23, 1906, jointly with the said Ellwoods and lived with them in said home and nursed and eared for them until their death and fully performed said contract. Plaintiffs were married about the date of the contract.
Thomas E. Ellwood died December 8, 1910, and his wife
Many errors are assigned as to the admissibility of certain evidence, but the case was tried in equity. No rulings were made by the trial court on objections to evidence, and no evidence was excluded. Incompetent evidence was introduced by both sides. Plaintiffs testified to personal transactions and communications with the Ellwoods, as did some of the parties defendant.
In this case there was both payment of the purchase price by rendering services as agreed, and possession under the contract, so far as possession was contemplated or possible under the contract, as well as performance of the contract on the part of plaintiffs. The question does not depend upon change of possession alone under the facts of this case. It was the desire of plaintiff William J. Hurst that upon his marriage he
The question in the case is largely one of fact whether the contract was established and performed by plaintiffs. "We ought not to take the space to review the evidence in detail. Some of it will be referred to and our conclusion stated. Much ■of the testimony on behalf of plaintiffs is uncontradicted. -There is testimony as to some statements made by plaintiffs which appellants claim are not consistent with their present claim. Some of these are denied by plaintiffs; others are explained.
The -statement by the plaintiff William J. Hurst, after the death of Mrs. Ellwood. that he had asked or advised Mrs.
Aside from this, we are satisfied from the record that when Mr. Ellwood made the deed, will, and bill of sale, and before that, he and his wife were in complete accord and understood that plaintiffs were to get the property either by reason of the parol contract or by the wife vesting them with title. Plaintiffs were the equitable owners, and it was a completed transfer, except the legal title. Her husband had told her to sign nothing. He had been a practicing lawyer and no doubt understood the force of a parol contract after performance by the other party. She did say at one time, when she was told that she could make a will or deed, that she would think it over and decide which way she wanted to do it. At another time, about two weeks before her death, in speaking of her property, she said she had not decided whether to make a will or a deed. These statements were made to the witness Keek, who testifies further:
She came into my office and called for me, and she said that Mr. Ellwood had told her if anything happened to come to me; that I understood his business. And in that conversation she asked me, or I explained to her, about how the property was, and she had a deed and assignment with her, and then she asked me this question, ‘ How does the property stand*420 and what will become of it as it stands ? ’ I answered it that the property would go to her relatives. ‘Well,’ she says, ‘that is not my understanding with Thomas.’ I says, ‘What was your understanding with Thomas?’ She says, ‘The home is to be Alma’s and Will’s and the balance of the property is to be divided equally between my relatives and Mr. Ellwood’s relatives. ’
The same witness testifies to a number of conversations with Mr. Ellwood, prior to those with Mrs. Ellwood just referred to, in which Mr. Ellwood said in substance, when plaintiffs were away on their wedding trip, that Mrs. Ellwood had been sick and that they had agreed with plaintiffs that if they would get married at that time and live with them and stay with them during their lifetime the home just as-it was would be theirs. That plaintiffs were married a year sooner than they intended at the request of the Ellwoods. At another time Mr. Ellwood said to this same witness (and this was at the time the will, deed, and bill of sale were made): “I just ■came down from home, and Ma has agreed to carry out our agreement with the folks.” The same witness testifies to still another conversation with Mr. Ellwood and says: “Yes, he called me up> to the house when he was sick .there, and that was while Mrs. Ellwood was away some place, I don’t know whether his last sickness or not, following that; it was anyway between that and the time he died; and he alluded to this (to the home there) that it would be Alma’s. She was there. Alma was there. The home and contents would be theirs just as it was. On a number of occasions he also referred to it in this way: The home just as it was. ”
The witness Darling testifies to conversations with Mr. Ellwood in which he stated the contract to be as plaintiffs claim; that he told Mrs. Ellwood what her husband had told him; and she said that was the understanding.
Many disinterested witnesses testified as to similar conversations with both Mr. and Mrs. Ellwood.
Plaintiffs lived in the property from the time of their
My dear Willie: I am glad to get your kind letter of the 7th inst. I have been a little dilatory in writing of late because I sleep about all the time. ... I feel fairly good. . . . Willie, you take $60 of that Tesh money and send me. I haven’t got quite money enough I guess to put me through. . . . Whatever you do, Willie, is all right with me. It always has been and always will be right with me. I am glad you got the Tesh money. . . . Fix everything to suit yourself. It will be all right,.my child, don’t worry about me being dissatisfied, for I never am. I am so glad baby is all right again. The little dear, I fear she will forget her grandpa, for I am away from her so much. ... I do hope you will all keep well. . . . Willie, sub rosa, pay no attention at all to what Mary says. . . . As to the auto house, there is not one word of truth in it, for you know I was right there at the time and helped you lay out the grounds and set the stakes, etc., etc. I have no objections at all, perfectly willing. Both Ma and I could live ten lifetimes, if need be, with you and Alma, if outsiders would keep their noses out. You just do whatever anything you think for the best and I assure you it will be all right and I will be fully satisfied. I know we have to bear a good deal in some ways from M, but it seems we can’t help it. ... I have borne it now for nearly thirty-five years. Sometimes I had to bite my tongue. I wish you would take the time and just sit down and write your father a good, long, kind letter. . . . Love to all. T. E. Ellwood.’
It is claimed the Mary referred to in the letter is one of
From all the evidence,, the trial court was fully justified in rendering a decree for plaintiffs, and it 'is therefore Affirmed.
