192 Mo. 270 | Mo. | 1905
This is a suit iu equity for the specific performance of a contract alleged to have been made in 1868 between one H. Monroe Sharp, who has since died intestate, on the one part, and the plaintiffs, who are husband and wife, on the other. The contract, as the petition alleges, was that plaintiffs, who were then residing in Clinton county, were to move to Nodaway county and there reside on a farm owned by IT. Monroe Sharp, help improve it and remain there, aiding him as long as he should live and at his death they were to have all of his property.
After all the evidence in the case was in and both sides had rested, the plaintiffs were permitted, over the
The intestate died in August, 1902, at the age of seventy-eight, leaving a farm of 240 acres in Nodaway county, 80 acres in Warren, and 80 acres in Morgan county, and personal property estimated at $700. Debts against the estate amounting to nearly $1,000 were allowed in the probate court.
The intestate had never married. He had had four brothers and three sisters, all of whom had died before his death, except one brother, Michael Sharp, who is now living in North Carolina. The plaintiff Dillie Eussell is the daughter of one of the deceased brothers. The defendants are the surviving brother, the descendants of the deceased brothers and sisters, and the administrator of the estate.
The petition states that the plaintiffs fully performed the contract on their part and pray a specific-performance on the other part by decreeing that they have the whole estate subject to the claims of the administration. .
The defendants answered denying the allegations of the petition and pleading the Statute of Frauds.
The trial resulted in a finding of the issues in favor of the plaintiffs and vesting the whole estate, subject to the claims of the administration, in the plaintiff Dillie Eussell. Defendants appeal.
The testimony on the part of the plaintiffs tended to prove that in 1868 they, being then married, moved from Clinton county to Nodaway and lived on the farm of Monroe Sharp, the bachelor uncle of plaintiff Dillie Eussell, he and they living together in his dwelling-house on the farm, Eussell renting from Sharp part of the farm and paying him as rent therefor one-third of
During the twenty or twenty-five years when he lived alone, Mrs. Russell frequently visited him and carried him bread that she had made and was kindly attentive to him, and her children'also visited him." But during the most of that period he was able to take care of himself and did not require much personal service.
The plaintiffs’ evidence also tended to show that they planted fruit trees, built .a comcrib, stable, hen-house and smokehouse, did some clearing, fencing, etc.
The testimony adduced to prove the alleged contract consisted entirely of admissions the old man was said to have made. This testimony may be summarized as follows:
L. J. Wood, a neighbor who lived four or five miles from Sharp, testified that he had a conversation with him twelve or thirteen years ago in which Sharp said
Logan Holt had known Sharp when they were young-men, worked as carpenters together, “I and him used to be great old’chums.” Witness had lived in town and had not seen so much of Sharp in the last twenty years, but still owned a farm in that neighborhood, would see him occasionally. Before Russell came on the farm Sharp told witness he wanted to get the Russells to come and stay with him and help him. On one occasion witness reminded Sharp that he was getting old and asked him what he was going to do with his property, to which he answered: “Billie Russell is going to get what I have. I allow for Billie to have it.” He said she had always been there, waited on him and took care of him. Witness being asked by plaintiffs ’ attorney if Sharp ever said to him that he (Sharp) had told the Russells that if they would come there and stay with him until he died Dillie should have the property, he answered: “I wouldn’t say right positive, but that is my impression. Now this is a long way back to recollect anything.” On cross-examination he said it was at least twenty years ago that he had this conversation with Sharp.
T. H. Williams had lived in the neighborhood and had “worked for him a little” and had had “a few words” of conversation with him about his relation with the Russells. It came about in this way: “He asked me how I came there with the folks that I did. I told him they raised me and of course they expected me if they had no children to have what property they had at their 'death ... I told him I understood that was the contract between him and Mr. Russell and he said it was, ... he aimed for them to have what he had at his
Norton Roberts had done some work for Sharp about two years ago; he said: “I asked him what he was going to do with his property, he was getting old . . . what he allowed to do with his property when he passed over; he said he allowed for them folks back there where we got dinner to have it. ’ ’ They had had dinner at the Russells’.
Plaintiffs’ main witness, Collins, testified that in 1898 he reminded Sharp that he was getting old, had no family, and asked him why he did not sell the farm and move to town, to which the old man answered: “I made a contract with Russell before he moved on this farm, him and his wife, that if they would come on this farm and live with me and take care of me when I am sick, at my death all my property goes to Russell and his wife.’* Witness also testified that the Russells always,took care of the old man when he was sick. On cross-examination this witness stated that he had no interest in the result of the suit but he admitted he had been very active in aiding Russell in the matter, was surety on the bond for costs, had helped hunt up witnesses, had gone with Russell every time he went, to consult his attorneys. On being asked if he had not said that he intended to carry the case to the Supreme Court and keep right along with it if it cost him eighty acres of land, he said: “Yes, sir, yes, sir, I am going to say that I said it, let me tell you about that now. ... I was accused by the heirs of taking a bribe aud getting eighty acres of land. I says to Culp: ‘I am no cheap John lawyer.’ I says, ‘You might tell them fellows, if' it will help them out a little, that Collins will spend eighty acres of land,’ as a kind of joke or burlesque. Q. You did in that way? A. Yes, I own up to that, I did say to Thomas Glenn that it would be worth $1,000 to me to find a witness that would testify to this contract. Q. I will ask you if you didn’t tell Wesley McKibber about the time this suit was
S. B. Fargo testified that he was an attorney at law, that about two years ago Sharp spoke to him about writing his will, and later they met on the street in Skid-more by the public well and Sharp told him he was ready to have the will written; he said, “Well, I have got my mind made up how I want my property to go; I contracted the home place to Alex. Russell and Ms wife . . . There is more land there now than there was when Mr. Russell went on it, but they were to have the place for their taking care of me when I am sick and burying me. . . . The other property I have disposed of any way, or will if you write my will just like that. ... I made a contract with Russell about thirty-five years ago and I can’t annul it ... I have fixed it with Russell and his wife, they will take care of me and bury me and they are to have the home place. They have grubbed it out. ’ ’ The will, however, was not written, because the witness asked five dollars for writing it, and Sharp offered two and a half, to which wit
A1 Russell, a son of plaintiffs, twenty-nine years old, testified that about eight years ago he went to Mr. Sharp to ask him to build a house for him on the farm, but Mr. Sharp wanted witness to build it and live on a certain forty acres; witness asked what he would do with the house in case of Sharp’s death, and the latter said that at his death the witness’s parents were to have the land, and he guessed they would not make him move it off. He told witness that if they stayed with him and took care of him during his last sickness they were to have it all. Witness did not recollect that the old man had had a spell of sickness for the last twenty or thirty years.
J. S. Bilby testified that about twenty-five years ago he went into Mr. Sharp’s house to get out of the rain, and during the brief visit joked him about getting
The testimony on the part of the defendants was to the following effect:
Monroe Sharp was seventy-eight years old when he died; until within the last few years of his life he was an active, industrious farmer, and generally in good health. When the Russells first came on the farm they lived in his house and he boarded with them. During the two years 1870-2, when they had moved away, he boarded with a neighbor, Mrs. Nunnelly, and paid her for same. When the Russells came back in 1873 Sharp boarded with them again for several years until he built the little house into which he moved and where he lived alone until his last sickness. While he boarded with the Russells he paid Mrs. Russell two dollars a week for his board and twenty-five cents a week for his washing. . There was nothing in the intercourse between Sharp and the Russells that was not usual between a landlord and a tenant, except a friendly relation to be expected between an uncle and his niece and her children living on his farm. The improvements put on the place by Russell were of temporary character and very inconsiderable in value. In 1889 Russell, declaring that land had become so high in Nodaway county that he could not hope to get a home there, made a run for a homestead in Oklahoma, but failed to get it and returned to the farm. Russell from time to time made statements to witnesses inconsistent with the contract he now asserts; to one witness he said that he had tried or' was going to try to get Sharp to give him a deed to half of the farm and if Sharp would not do it he would get the land when Sharp died; to another witness he said that he had lived on that 120 acres twenty years and the law gave him a title; to others he said that two of Monroe. Sharp’s brothers, then dead, had told
The foregoing is the substance of the large volume of the evidence in the case.
The contract alleged in the petition is within the scope of the Statute of Frauds; it is of such a character that the law has deemed it prudent to declare that it will not be recognized unless it is in writing and signed by the party sought to be charged. The facts in this case illustrate the wisdom of this policy; if the law would allow an estate to be diverted from the statutory course of descent, by oral evidence of an oral contract alleged to have been made more than thirty years ago, after the death of the party whose estate is sought to be affected and whose lips are therefore sealed, it would be not. only a constant menace to the peace of families, but a constant temptation to the commission of fraud and perjury. It was for that reason that that which we call the Statute of Frauds, which in its original form
But to the Anglo-Saxon mind a law, however wise and just in its general application, is not of such inflexible character that it will always be applied regardless of circumstances where its application would result in the perpetration of fraud. So it has been said that equity in such case will interpose to prevent the Statute of Frauds from being made the instrument of fraud. And therefore it has come to be the recognized authority of courts of equity in England and in this country to require a party to observe and perform his contract though it be within the scope of the statute and be not in writing, if it has been in good faith fully performed by one party and if refusal to perform it by the other would result in great injustice and the perpetration of a fraud. But when a court of equity exercises this authority it by no means brushes aside the Statute of Frauds or impugns its wisdom; on the contrary, it is so careful to see that the fraud which the statute was designed to guard against is not perpetrated that it really adds to the statute a new strength by demonstrating that it may be so administered that justice will not suffer or the statute made the instrument of the very evil it was designed to prevent.
And how does a court of equity accomplish this? By the simple common-sense rule of requiring one who invokes the aid of equity in such case to prove his case, not by vague or shadowy evidence, not even by a mere preponderance of evidence, but by evidence so unquestionable in its character, so clear, cogent and convincing, that no reasonable doubt can be entertained of its truth; that no such doubt can linger either as to the existence of the contract or the certainty of its terms or that the plaintiff has wholly performed his part.
. Does the plaintiff’s evidence in the case before us come up to this standard?
Before discussing the evidence let us look at some of the circumstances surrounding the case.
According to the plaintiffs ’ petition as it was when the parties went to trial, and as it was until all the evidence was in, the contract was that the plaintiffs were to come to Nodaway county, there reside on the farm of Monroe Sharp, help improve it and remain there aiding him as long as he should live, and for that, at his death, they were to have all of his property. Under that statement of the contract the part the plaintiffs were to do was to help improve the farm and aid Monroe Sharp. The idea that the plaintiffs were to take care of him when he was sick did not appear in the case until the evidence had closed, then the allegation of helping to improve the farm was cut out and that of attending Sharp in sickness was'inserted in its place. An amendment in a pleading which does not change substantially the claim or defense, may in a proper case be allowed by the court to be made even after the evidence is closed. [Sec. 657, R. S. 1899; Carr v. Moss, 87 Mo. 447.] It is unnecessary in this case to decide whether the court exercised a wise discretion in allowing this amendment to be made when it was, because we are not now viewing it under the rules of pleading,
There was no attempt made to show why this contract was not reduced to writing. This is not like many of the cases that have come before us where the alleged agreement was for the adoption of a young child who was taken into the family and reared. In such case the child could not be expected to see to the execution of the deed of adoption, but here were parties old enough to take care of their own interests and the very fact that there was no writing is a circumstance that calls for an explanation on their part. These were not ignorant people; it is unreasonable to presume that either Sharp or the Russells would have entered into such a contract to run for a lifetime, with no writing to show for it. The evidence shows that Russell is a man of sense
There is another fact that casts doubt on the plaintiffs ’ case. If they spent the thirty-odd years of their lives on this farm as in the fulfillment of their part of the alleged agreement, it would be most natural that their children who were born and reared on the farm would have at least heard something about the contract, yet although three of them were witnesses for the plaintiffs in the case, it seems that they never heard of it.
One of the daughters, Miss Ora Russell, twenty-four years old, testified that she had never heard of such a contract, and it appears inferentially from the testimony of the son that he had never heard of it. It is highly improbable that there should have been a contract of such importance to their welfare yet it was never spoken of in the family.
When men reach or are approaching an age and condition in which it behooves them to provide for their own nursing when they will be no longer able to take care of themselves, it is quite natural that contracts should be made of the kind alleged to have been made in this case, and when made they are deemed in law meritorious and are upheld. But there was no such age or condition in sight in 1868 when Sharp is said to have made this contract. He was then in the prime and vigor of his life, the evil days had come not, nor had the years drawn nigh when he might naturally apprehend the necessity of such guardianship. The common experience of mankind does not teach that men in the full prime and vigor of life brood upon such subjects. We do not, of course, say that a man of Sharp’s age and strength and means could not make such a contract, but we do say that he is not so apt to do so as one whose condition suggested a necessity for it, and that that is a fact to be considered when we are weighing the evidence.
The evidence on which the plaintiffs rely to prove their alleged contract consists entirely of admissions said to have been made by Monroe Sharp in his lifetime.
The value of admissions as evidence depends on the circumstances under which and to whom and when they were made. Sometimes admissions are of a high order of evidence but sometimes also they are of little weight. Here the evidence, except that of witness Fargo, related to fragments of casual conversations held without any definite purpose, with persons who had no interest in either hearing or remembering what was said, and who undertook to recall it after many years and some of whom at least, according to defendants’
The only witness whose testimony indicates a serious purpose for the conversation which he attempts to repeat is Fargo, who said that Sharp wanted him to write his will, but even that conversation occurred at an accidental meeting of the witness at the town pump-.
When this witness was offered and it came out that Sharp was talking with him as an attorney at law, with a purpose of employing him to write his will, objection to the testimony was made on the ground that the conversation was under the seal of professional confidence.
Even if the evidence of this witness is competent it is not clear and is not satisfying. In one breath he says that Sharp told him that he was now ready to have his will written and had made up his mind as to how he wanted his property to go. That would indicate that up to that time at least the disposal of his property by will was a matter he had held in doubt and he had only just then made up his mind about it. Then according to the witness, Sharp went on to say: “I contracted the home place to Alex. Russell and his wife. ... . They were to have the place for them taking care of me and burying me. . . . The other property I have disposed of any way, or will. ’ ’ This witness on cross-examination admitted that he was under the pay of the
Plaintiffs’ main witness was Collins. He testified by way of introduction to the conversation that in 1898 he reminded Sharp that he was getting old and advised him to sell his farm and move to town. This introduction implies that this witness was taking the interest of an intimate friend in the 'old man and it also implies that there was then something in the old man’s condition and environment that suggested that he ought to be where, in case of need, he could be attended to. If he was on the terms of intimate friendship that his preamble implies and if the Russells were giving the old man the kind attention it is now claimed they gave him, this witness would doubtless have known it and therefore there would have been no occasion for such advice.
But the evidence shows that Collins and the old man were at that time not on terms of good neighbor-ship; if not actually unfriendly they were at least not friendly. Witnesses for the defendants testified that Sharp was a reserved man, and was not in the habit of talking about his business, and this witness Collins himself said so, yet he would have the court believe that in this conversation in 1898 the old man laid aside his habitual reserve and confided to the witness that he could not take the advice to sell out and move to town because he was under constraint of a contract made with Russell before he moved on the place that if they would come to the farm and live with him and take care of him when he was sick they should have all his property at his death. According to this witness they were to have, not the home place merely, as Fargo said, but
That this witness is the mainspring in the prosecution of this suit, and has taken on his hands more than would he expected of a disinterested neighbor, appears from his own evidence, and if the evidence of some of the defendants’ witnesses is believed he has been unduly active in the matter. His testimony is not convincing.
Taking the ease with all the circumstances of improbability surrounding it, the evidence adduced to sustain the plaintiffs’ cause falls short of the standard of proof that a court of equity requires in such case.
The judgment is reversed and the cause remanded to the circuit court with directions to enter judgment for the defendants.