108 Va. 790 | Va. | 1908
delivered the opinion of the court.
J. H. Reed and others, claiming to be heirs at law of Alexander Reed, deceased, filed their bill in the Circuit Court of Rock-bridge county, in which they state that Alexander Reed died seized and possessed of sundry personal and real estate. The real estáte consisted of an undivided five-eighths interest in a tract of. land containing about eighty-five acres, the other three-eighths interest being owned by his sister, Indiana Reed; and. that the personal estate amounted to $373.29. The object of the bill was to have a partition of the real estate and a distribution of the personal estate among those entitled thereto. Indiana Reed, a sister of Alexander Reed, and Thomas A. Sterrett, his administrator, were made parties defendant.
Indiana Reed filed an answer and cross-bill, in which she states that her brother, Alexander, was in April, 1885, adjudged a lunatic, and admitted to the lunatic asylum at Staunton, Va.; that he soon recovered his mind and wrote to her most earnest letters and made urgent appeals to her and to his brothers to get him released, that he was in a most distressed
The plaintiffs’ answered this cross-bill, and by their answer put all of its material allegations in issue. The case was referred to a commissioner to ascertain what personal property Alexander Reed died possessed of and its value; what real estate he died possessed of and its value; what contract was made between Alexander Reed and Indiana Reed and whether the same was legal and enforceable, and the value of her services ; and a statement of the property taken by Thos. A. Sterrett, administrator, and the proceeds therefrom, to whom it belonged, and the-proper distribution of said proceeds and the costs.
In answer to these interrogatories, the commissioner made an excellent report, in which the facts are stated so clearly that we cannot do better than to reproduce it in substance.
Dealing first with the mental capacity of Alexander Reed to make the contract, the report states that Alexander Reed had been dangerously insane when committed to the asylum in April, 1885; that he was discharged as “improved” in December of that year, and that during all the rest of his life he was subject to frequent epileptic fits of more or less severity; that
From this evidence the commissioner deduced the conclusion that a man who could perform the ordinary duties of life would be capable, during the periods when he was free from insanity, of making a contract involving the disposition of his property.
The commissioner then proceeds to inquire, whether or not the contract made with his sister was such as to remove the case from the operation of the statute of frauds, referring to Wright v. Puckett, 22 Gratt. 370, and Plunkett v. Bryant, 101 Va. 818, 45 S. E. 742, where the principles upon which a court of'equity will enforce a parol agreement for the sale of land are stated as follows:
1st. The parol agreement relied on must be certain and definite in its terms;
“2nd. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreemeüt proved.
“3rd. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation.
Referring to the second principle upon which a parol agreement for the sale of land will be enforced — that the acts proved in part performance must be in pursuance of the agreement proved — the report states, that the only reasonable explanation that can be made of the sister’s taking the brother from the asylum and keeping him at home is that she did it at his request and pursuant to some agreement made with him; that it is hardly conceivable that she would, as a mere volunteer, assume the burden and danger of caring for a man, even though her brother, who was subject to such horrible and dangerous spells of insanity as this man had; but that she was inspired to a large degree by her sisterly affection for her brother in the care that she gave him, as the little property he had was very poor compensation for the services rendered to him. The commissioner concludes, therefore, upon the evidence, that the acts proved were done in pursuance of the agreement which had been entered into.
Coming then to the third requirement — that the refusal of full execution would operate a fraud upon the party and place
The conclusion of the commissioner is that the contract between the parties has been proven with certainty, and that it should be enforced; those who are resisting its enforcement having stood by for more than sixteen years without raising a finger to aid this sister who has borne the whole burden and danger of caring for her afflicted brother; and, finally, that they are not hurt by its enforcement, for if he had been allowed to remain in the hospital all of it would have fallen far short of paying his expenses, and there would have been nothing left for his relatives.
We think the evidence fully sustains the conclusions of the commissioner.
In addition to the authorities already cited of Wright v. Puckett, and Plunkett v. Bryant, we refer to Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 74 Am. St. Rep. 490, 43 L. R. A. 427; “Where, in a parol agreement for the purchase
In Rhodes v. Rhodes, 3 Sandf. ch. (N. Y.) 279, it was held: “In general, the payment of the consideration is not such a part performance of a parol agreement for the purchase of lands as will relieve it from the operation of the statute of frauds. But where the consideration consists of services to be rendered, which are of such a peculiar character that it is impossible to estimate their value to the vendor by a pecuniary standard and the vendor did not intend to measure them by such a standard, the performance of the services will entitle the vendee to a specific performance, notwithstanding the contract was by parol. This was held of an agreement made between two brothers, who had always lived together and owned their property in common, by which the one having a family agreed to provide for and take care of the other — who had no family, and who was subject to epileptic fits — during his life, in consideration that the former should have all the real and personal estate of the latter. Held, also, that the contract was so far certain and reasonable in its terms that it ought to be enforced in equity.
The doctrine of that case is cited with approval by Pomeroy in his work on Contracts, p. 181, where he says that the principle of the case is sound; and further says: “But if the services are of such a peculiar character that it is impossible to estimate their value by any pecuniary standard, and it is evident that the parties did not intend to measure them by any such standard, then the plaintiff, after the performance of these services, could not be restored to the situation in which he was before, or be compensated by any recovery of legal damages. Under these circumstances, the rendition of the services, or the procuring
In Svanburg v. Fossen, supra, Mitchell, J., concurring said: “I think the case is taken out of the statute of frauds by the fact that the consideration which plaintiff has furnished consisted not merely of services in the ordinary sense of the word, but also of the assumption of a peculiar personal and domestic relation to the deceased as a member of their family; and therefore the value of the consideration as a whole is incapable of being estimated by any mere pecuniary standard.”
The commissioner’s report is fully sustained by the evidence; and, upon the whole case, we are of opinion that it should be affirmed.
Affirmed.