181 P. 351 | Or. | 1919
Lead Opinion
Substantially the only witness for the plaintiff is himself. He narrates that he and his mother came to this state and, after an unsuccessful venture on a larger farm they bought together the tract in dispute, taking title to themselves as' tenants in common; that they lived together on the land for several years, she doing the housework and otherwise assisting in the management of the place and the marketing of its products, and all went smoothly until he married. The old lady, feeling herself supplanted by the daughter-in-law, left, and the plaintiff, according to his story, provided for her sustenance at various places in Corvallis and finally the mother took up her abode at the Patton Home in Portland. He says that he paid her expenses at the rate of twenty dollars per month at all of these places, as well as during a trip she made to some of the eastern states on a visit.
No effort is made to account for the contract, if it was in writing, or for the deed, beyond its withdrawal from the bank. The plaintiff does not claim to have had a copy of the agreement, if there was one, so that the question really turns upon whether there is sufficient- evidence to prove a contract and, further, whether part performance has been shown sufficiently to support a decree compelling a conveyance.
As late as March 30, 1910, the plaintiff and his mother made the following agreement:
“Whereas, Chauncey Le Vee and Mary Le Vee are the owners and tenants in common of a certain 32.5 acre tract of land one mile north of Corvallis, and the said Mary Le Yee desires to go East, and it is arranged that said Chauncey Le Yee shall pay her $20.00 a month for her support, in consideration ofi which he is not to be charged with rent for the use of said land.
“Now, therefore, it is agreed between said Chauncey Le Yee and Mary Le Yee as follows: Said Chaun*375 cey Le Vee agrees to pay said Mary Le Vee the sum of $20.00 per month for her support, said money to be sent to her at such place whatever she may be residing, and in consideration of such payment, said Mary Le Vee agrees that so long as payments are kept up, said Chauneey Le Vee shall not be liable for payment of any rent for the use of said premises. Said Chauneey Le Vee further agree? to pay the taxes on said land.
“This agreement may be dissolved by either party hereto, at any time hereafter.
“In witness whereof, the parties hereto have hereunto set their hands and seals, in duplicate, this March 30th, 1910.
“ (Signed) Mary Le Vee. (Seal)
“ (Signed) .C. W. Le Vee. (Seal)
“In presence of:
“(Signed) E. E. Wilson.”
It is admitted that within six months after the probate of the will the plaintiff presented to the executor his claim for moneys advanced to ids mother for three years’ interest on her half of the mortgage, for taxes on her half of the realty, for funeral expenses and claims and other demands discharged by him, amounting in all to $1,955.
In Tonseth v. Larsen, 69 Or. 387 (138 Pac. 1080), Mr. Justice Bean quotes with approval from 36 Cyc. 659:
“Possession, in order to be an act of part performance, either alone or in connection with other acts, is subject to several requirements. First, it must have been taken in pursuance of the contract. Further, it must be exclusively referable to the contract; that is to say, it must be such a possession that an outsider, knowing all the circumstances attending it, save only the one fact, the alleged contract, would naturally and reasonably infer that some contract existed relating to the land of the same general nature as the contract alleged.”
“Where a cotenant with a part owner of real property claims specific performance of an oral contract of purchase with another owner the proof must be clear that possession was taken under the oral agreement to'constitute such a part performance as to avoid the statute of frauds.”
“When the evidence leaves the case in such a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should be withdrawn from their consideration.”
In short, by reason of the fact that all the things said to have been done by the plaintiff are easily referable to the relation of tenants in common existing between himself and his mother, and that the act of his taking what was substantially a lease of the premises on March 30, 1910, and his presenting a claim to her administrator are contradictory of his theory of contract, he has failed to make a case preponderating in effect over that made by the defendants. The case presented is not like Woods v. Dunn, 81 Or. 457 (159 Pac. 1158). There the will made by the former ownei of the land was itself a writing sufficient to satisfy the statute of frauds. Besides this, the agreement was otherwise amply proved together with its unequivocal part performance by the plaintiff.
Stalker v. Stalker, 78 Or. 291 (153 Pac. 52), cited by the plaintiff, was a case where a member of the Church of Jesus Christ of Latter-day Saints had contracted
Kelley v. Devin, 65 Or. 211 (132 Pac. 535), was a case where a father contracted with his son, who was. long past the age of majority, to the effect that if the son would participate in the management of his father’s property during the life of the latter, he would devise to him an undivided half of all his estate. This agreement was clearly proved by at least three disinterested witnesses and there was such a change in the management of the father’s affairs by the par-' ticipation of the son therein that anyone seeing the difference would be put upon inquiry about a contract, as that would be the only reasonable explanation of the change in management.
Sprague v. Jessup, 48 Or. 211 (83 Pac. 145, 84 Pac. 802, 4 L. R. A. (N. S.). 410), involved a contract between strangers evidenced by the purchaser’s taking possession of the realty to the utter exclusion of the seller, besides which, part of the purchase price had been paid and a memorandum in writing signed by the seller indicated that the payment was made on account of the purchase price. In their facts and circumstances all these cases cited .by the plaintiff differ widely from the one at bar and are not controlling here.
Rehearing
Rehearing denied September 9, 1919.
Petition for Rehearing.
(183 Pac. 773.)
The plaintiff claimed he had a contract with his mother whereby, in consideration of his caring for her during her life, etc., she agreed to convey to him either by deed or by will an undivided half in fee of a tract of land which they owned in common. He charges in his complaint that she violated the contract and devised to him only a life estate in her half of the tract, conditioned upon his paying her debts and a mortgage upon the land. After her death he instituted this suit against his sisters and his brother and the spouses of those married, to compel a conveyance of the property. Some of the de
The principle governing the matter is thus succinctly stated in 16 Cyc. 497:
“Failure of one defendant to answer and a decree pro confesso against him do not entitle plaintiff to take the allegations of his prayer as true against him who has answered. A final decree upon the merits cannot then be entered either against the defaulting*381 defendant or those not in default, without proof of the material allegations of the prayer. And even where a decree pro confesso has been entered against a defaulting defendant as upon issue joined by a codefendant and trial had it turns out that the bill ought not to be sustained as to either defendant, it will be dismissed as to the defaulting defendant as well as to the defendant not in default. This rule, of course, does not apply where the allegations in the bill against the defaulting defendants and the defenses of the answering defendants have no necessary connection, so that upon the trial it turns out that a final decree on the merits against the defaulting defendants is not inconsistent with a decree dismissing the bill as against the defendants not in default. ’ ’
Sections 180 and 181, L. O. L., read thus:
180. “Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves.”
181. “In an action against several defendants the court may, in its discretion, render judgment against one or more of them whenever a several judgment is proper, leaving the action to proceed against the others.”
“The next of kin of a deceased person are liable to a suit in equity by a creditor of the estate to recover the distributive shares received out of such estate or to so much thereof as may be necessary to satisfy his debt. The suit may be against all of the next of kin jointly or against any one or more of them severally.”
The cases cited in support of the petition for rehearing are uniformly those in which the liability sought to be enforced was joint. For example, Frow v. De La Vega, 15 Wall. 552 (21 L. Ed. 60), the leading case cited in support of the petition, was one where fourteen defendants were charged with conspiracy to defraud the plaintiff of certain lands. Of course, in such an instance there was a joint liability. There could be but one recovery and the release of one tortfeasor would exonerate the others. The principle does not apply here, for the defendants are each liable only pro tanto, if at all, without reference to either of the others, and the plaintiff may enforce his claim against any one of them as he may be able to establish it, whether by their consent or otherwise, without affecting his litigation with the others. The text-writer in 15 R. C. L. 1032, after treating of the effect of judgments against part of a number of individuals who are jointly liable .according to the contention of the petition before us, uses this language respecting cotenants:
*384 “Tenants in common are not privies, and are therefore not honnd by judgments rendered in actions brought by one of their cotenants respecting the common property. ’ ’
As the estoppels of judgments are mutual, the rule is the same on the other hand, so that tenants in common cannot claim the benefit of a decree in favor of their cotenants. An illuminative case supporting the text on the- relation of tenants in common to each other is Allred v. Smith, 135 N. C. 443 (47 S. E. 597, 65 L. R. A. 924). In that instance the maternal ancestor of the litigants had conveyed'her land to one of them, G. A. Allred. After the mother’s death Willie Allred instituted a suit against the grantee in the deed and succeeded in having it set aside and declared void on the ground of the mother’s mental incompetence. The plaintiff in that suit afterwards joined with her other brothers and sisters in a suit against G. A. Allred to partition the land into nine equal parts, that being the number of the children in the family of the deceased grantor. After an exhaustive examination-of the case the court held that the other children could claim no advantage by reason of the decree between the litigants in the suit to cancel the deed, the reason being that tenants in common were independent of each other and that neither of them could charge or estop the others, and hence neither could take advantage of anything done by the others respecting the title to the realty involved. There, as here, it was argued that as the contract by which title passed to the grantee was declared void, it was void as to everybody. The court, however, held that it was void only as to those who were engaged in contesting it.
The only concern which the executor of the will in the present instance has in relation to the real estate
The nonanswering defendants are not here complaining. Indeed, they are not before this court, because the notice of appeal was not served upon them. As to them he cannot, for want of jurisdiction, disturb that which they are willing should stand. We can deal only with those parties who are before us, and the successful defendants must be satisfied with the decree we have rendered. The petition for rehearing must be denied. Modified. Rehearing Denied.