*1 Mary 91. (2d) Appellant. S. W. Lore, v. Edna et al. Smith One, June
Division Jayne Jayne, Jayne appellant. é *2 Rieger J. E. respondent. and J. E. Luther for
ELLISON, petition par- is to determine title and C. The Kirksville, County, of 160 farm tition in Adair acres of lot County. County in in Knox and 360 of farm land Scotland acres land plaintiffs deceased, Lore, being of Julia The are her heirs nephews brother, sisters, three and three sets of and nieces who Lore, children brothers. The defendant, are of three deceased Lore, the widow Madison or “M” as he in (cid:127)is is called her, record, only predeceased He of the said Julia Lore. child His intestate, November,- 1918, leaving in descendants. no lineal theretofore, mother, father had Julia, so his was his sole subject under heir Revised Statutes the dower Section rights Edna; Julia the defendant when thereafter died her, January, 1926, kin, aforesaid, in collateral her became heirs. owning Kirksville,
M. in 160 in Lore died the lot acres County. County 200 acres of land in Scotland The Knox remaining county by 160 acres in that was owned him and having together, mother each an' undivided half interest. So the n plaintiffs by claim abоve mentioned from all land inheritance Lore, Edna a Julia but concede the defendant dower interest except County in of it the half interest in the 160 all Scotland which- Madison. belong acres did- not adminis- There no filed tration estate, on Madison’s the time this and at suit personal not in his real and Edna had elected take a half interest estate under 321 and Revised Statutes Sections answer
The of Edna claimed the whole title to adversely Scot- except the land half in the 160 in involved interest аcres County conceded, land be- This, which had owned. it was longed plaintiffs to the heirs of Julia. alleges claim basis the defendant Edna’s is this. She in mother, Julia, partners
that when Madison died he and his figures farming raising’ on the acres of land which stock herein ease, involved and about acres of other belonged pleaded which contention alone. It is Edna’s preparing upon Madison, that husband, the death of her that parental home, proposed to return to her when Julia her arrange- pаrtnership she would remain and aforesaid continue ment, (Julia) (Edna) personal her all the real words, owned lie died. In other Madison when interest step was to into Madison’s have the same shoes partnership by and the and the used lot owned. Kirksville that charges foregoing
The answer carried that the contract was fully Julia, except Julia, parties up both the death through oversight, convey land to neglect Madison’s failed agreement will; prayed deed or and it is therefore against As heirs, plaintiffs. specifically Julia’s enforced County in which Madison had to the 160 acres land in Scotland plaintiffs in- in which the interest, half undivided partition joins interest, praying herited other half the answer rights alleged with Edna’s un- tract —but accordance answer that A claim was made in the contract. further der *4 half in- purchase price the of Julia’s $1200 Madison advanced of prayed against acres, and a the same was terest this 160 lien by proof and was accordingly; was not sustained that claim again. refer mаy say, so we shall not to abandoned, we By up in the plaintiffs contract set reply the denied the their court found the answer, of Frauds. The pleaded the Statute and only intereest adjudged Edna plaintiffs and Lore’s the issues for right take one-lialf share a to a be a dower with elect Subject dower dower, to this under the statutes. fee lieu partition was plaintiffs and in the right decreed the title was This Julia. with their interests heirs ordered in accordance 1926, terms thereof by the 31, and entered on Decеmber decree was option to take required to exercise Edna was the defendant order 21, 1927. Under coercion this February by election dower fixed, within the time interest fee a half she did elect to take appointing order com- further thereupon made a and the court remainder. missioners set out the dower interest the partition and appealed. interlocutory this has Edna Ffrom decree the defendant only question case here, practically is the As submitted by decision pleaded is whether on the oral contract and relied appellant evidence. Edna established Lore was sufficiently about may go controversy Indeed no we further there is into Lore, deceased, fact that Julia and Edna Lore did enter arrangement whereby partnership some contract theretofore ex- Madison’s isting after between Julia Madison was continued enterprise. death with Edna in the Under as his successor partnership personalty contract succeeded his interest in the only question —there is no doubt that. whether The is got, well, the real he owned. estate fact abundantly
The when Madison died established that partnership amounting $7,000. bank owed at *5 any change ownership. there was in His answer was af- in the firmative, and the inference say is that he meant was getting Madison’s land as well as personal though his property, might as testimony not as clear it point on witness’s be. 1920. The two partnership in Budy George W. assessed made out a they partners
women told him were disclose whether testimony does not list. The of this witness this con- controversy expressly mentioned in real estate in was showing taxes receipts introduced evidence versation, tax assessed to Julia 1925 were paid the land jointly paid by partnership. and were Collector Deputy U. S. Internal Bevenue Charles Shumate was over a re- women to check Lore He called on the two death year 1918. He learned of Madison’s turn made for deceased. suggested be made for the a return should saying, “Edna has necessary, declared she didn’t think it though doing business stepped and we are in his shoes were he here.’.’ of Madison’s and schoolmate an old friend Baser was Lester long told while. He said Julia Lore a had known Julia and Edna didn’t “together on the stock” but he and Edna were him she illness evening took sick of her last know land. she about the talk business. She she for him. She wanted to she sent no there up, hard her affairs would be fixed so but that didn’t She also said after she died. she fighting property over her sick, and him several told any folks called she want of her they had. times after she were death Madison’s Edina, said before Honan, J. banker at J. by Madison farming enterprise conducted bank account of the Afterward ran in in his name. mother carried Edna took Edna Lore. of both Julia and name equal
up partnership. There were shares part of Madison’s except some place everything probably on the livestock and about was not asked machinery owned. The witness Madison the real estate. 1922. Julia sedan in Emery Ashby Julia and Edna a Ford sold that Edna had as much to partners and
told him Madison buying since had car she did. She said seemed as near to her as her nearest relative she personal she declared had. land and son As to the all; turned any part at want Madison’s didn’t On cross-examination partners. Edna and over- to in her conversation and said Julia mentioned the testified to Edna. estate over had turned Madison’s putting negotiated Julia and E'dna about Salisbury T. J. buildings part- land used located оn
some fire insurance of the insurance question up about the amount nership. came Some you buildings. “Well, Edna: Julia said to value of the and the *6 just you have as have, as much I interested much are I by am.” paid for The insurance was made out to and partnership, part a buildings, it not clear that them, were on the There is some evi- land involved in this suit. indicating improvements part dence a of the covered were on owned Julia Lore alone.
Hobart Purvis worked as a farm hand for Julia and Edna nearly years two in 1924 and 1925. Julia Lore said she and partners, part and that when Madison died she turned his property to somebody to She she needed Edna. stay with get along her and very couldn’t well Edna. On without cross-examination he said Edna Mar- farms, was absent from the celine, about six weeks and about two months Phillips part-
Verne was a farm 'hand. He worked for the Lore years off nership Being and on for three and lived in their home. asked if he knew who owned the land him he said Julia told “the all of it was hers half Edna’s.” And half again right that stay Edna “had land there she had a there and half the stock hers and half was of it was Edna’s.” Further quoted saying: Julia as “The that M. and Edna bought it; she -wanted Edna to have man that was hers. When her got part died she of that and when she died she wanted get thought things see Edna M.’s.” She also said “she she had they go way fixed so to,” she wanted them hoped get thought “she some they didn’t going it get it, thought but she she had it fixed so wouldn’t.” plaintiffs’ On cross-examination counsel asked the witness if he (Madison’s knew that when father) Julia’s husband died she got half property. The witness answered “Only what Mrs. Lore told me.” you He was then asked: “She told just marriage?” wanted Edna treated like she was treated in that answered, “Yes, part.” He And she wanted Edna to have M’s added, counsel “And be treated like she was?” and the wit- ness answered, “Yes, sir.”
Later Phillips on this witness was recalled. Verne redirect On re-cross-examination, he said Julia Lore stay asked dinner day, one and while there she told him of her about one brothers who had died and how he “I left his estate. said: got think I way, get have mine fixed that I so the one want to get nobody it will it and can it and hope gets bother I that Efdna all of part.” might M’s The witness said he told her cause trouble, said, and she “I care if don’t there is. I think will stay get brought with them it.” It was counsel respondents appearance that since his former on the stand the wit- appellant, vigorously ness had talked counsel for and he having assailed for story beginning. failed to tell the same in Phillips Jud went after to see Julia Lore Madison died buying promised some him have. Madison had let timber going partners him she and Edna were always equal run the place M. had run the same as it. They owners get of the had. “"When stock and Edna the land M. thought the old man everything there and she right On cross-examination for Edna to that.” the witness have *7 buy $8 said he The paid the timber he went to and for it. Phillips $8 bank account from L. shows a credit I. 1918. December He O. J. Rhodes went see Julia about insurance. to Lore some “jacklegged notary public lawyer,” testified, a a and was and how will. asked him if he would her She him draw told go fearing would he, she wanted her to instrument and talking complicated, lawyer too a Edina. In referred her in to dying him an to without and said she shed tears about M’s heir they together 1500 acres. She getting had set hearts on their part M’s. told and which was hers and which where their land was part M’s the estate.” She “she wanted Edna to have all of said proposed leave sister one As we understand the witness she to one dollar, forty acres others, in two County some land Scotland to and no county to the a There was cross-examination cemetery. for this witness. women for one
Leo for two Lore about Bachman worked day in 1923 it years one-half in 1923 1924. One while and and died him M. raining Julia told when was he went in house. they debt, and $7,000 had some cattle she and were money paid Bank it Edina hogs on at the feed and borrowed part have and all- that out. M’s She said “she wanted Edna together.” working together was while her and made stay if told Edna she would said died “she She also when M. go like her was and M. they would and do help her ’’ doing. tоld her time Mrs. Dora that Julia Lore Pierce testified her again any three sisters called see she want of her didn’t enough.” She didn’t soon “and until she dead say why. loved said Julia Lore told her she
Mrs. Minnie Mallory how day She did with her. not disclose better ever she lived her except “she didn’t want her sisters felt toward times, the several had.” She said this to have what she folks she wanted long Once she said she died. last before time a months home. This also few go orphan’s an it before she died. twenty-eight years practice some lawyer in the Jayne, J. M. a appellant. for trial, He was also was a witness the time of the at appellant case, and in answer to one questions for attorneys employed partly aon on cross-examination said he was contingent making deed him about She came to consult a fee. cemetery. for In course conveying county a some giving property an the conversation she asked about orphans’ M. I Edna if she would home. She said “when I stay give part with me I would her thе rest it want M.’s October, orphans’ some home.” This of it to orphans’ again giving property Later to an she came to him H,e it. said home. either will deed She told her she could it go private Kirksville and she would papers her were in there '.arranged have “she had done, she stated then part was fixed and she wanted to deed this Edna M.’s and that prop- Government bonds some other.” She she had some money papers out. erty and some loaned Kirksville in her box there. agreed that certain
By stipulation counsel it was between testify “that she and her present Mrs. Pruitt were M. operated by Julia Lore and son husband lived on farm living at years; on that farm *8 Lore about four died; husband died after M. Lore shortly the time M. Lore that her Lore, died; which had with Mrs. Julia that in a conversation she agreed with that Julia she had Edna Lore Mrs. Lore told her that stay help with if on the farm her and she, Lore, would Eidna all the her run farm would Edna Lore that the died, farm and that would M. Lore at time he owned the farm and a of that farm and business.” pаrtnership continue Edna return and Lore income tax partnership year 1922 was Department Internal Revenue for the the U. S. evidence, along accompanying the schedule of with introduced returns expenses; the individual income tax farm income and also year. Lore, respectively, for that same These of Julia Edna and partnership farming operations showed net income from the the $2760.36, got half, $1380.18, of which Julia and amounted to paid $62.33 had showed she individually half. In addition Edna which was рroperty, unrented, residence and taxes Kirksville on a Liberty Bonds. In her $12.75 interest that received interest separate paid $297.50’ taxes and Julia showed no return return farm Liberty Their received on Bonds. $650. year 1923 showed a net loss of the schedule for by were writteen Finally, which Julia Lore certain letters mother, Turner, put Mrs. latter’s the Lore and 9, dated November 1924. it first of these In record. The the “ours”) : (underscoring* said Julia Lore know would Dr Yralker he want to what from got “I a letter price he said all 200 acres оf land my that best per for him $30.00 sale. I Tell him him will write & I will acre abstract providing gave in cash he a us warntee deed lays for by the our I little acres land. would do a here I anything better if I get it but look will see what could dont for he about poorest the has.” land he
In her dated letter, 19, 1924, answering next November one re- again nig'ht before, referring ceived the Walker land transaction, Mrs. said: Lore “I wrote to Walker he me. Of never answered course we would & from we abstract see yes If I get rest of the on а with him I want aeount deal
you go & to come we would & see about title.” September 29 There were other letters written four between gave neigh- They family December discussed matters and management gossip, borhood talk about the farm and purchase making handling, and sale of live poultry, stock letters, out of In one of November reports, income tax etc. dated says: “Charley tonight & Lena here making sign up trapeing & put keep the hunters out of regard our farms.” an All of letters indicate affectionate many expressed mother, times the wish is that she and Turner, Mrs. or that would come back soon were there on things going good Lore farm eat to have some that were on the table.
I. often Respondents rule evidence. invoke the So much for the litigant specific seeks enforce declared this court that -when performance convey land in the teeth of contract of an oral Frauds, will be held clear con- Statute explicit agreement must be therefor and Proof is un adequate consideration. It supported several canons thereof here. The necessary to the doctrine restate *9 119, 147 W. 243 Mo. S. Bohannan, v. are Walker set out since. and and decisions before in other rare, the Walker- are as specific performance cases But while true is conclusion that driven to says, Bohannan case we are the pleaded proven opinion and the of In our contract one them. if would become Madi- sufficiently It Edna was that
was definite. existing be- theretofore farming partnеrship son’s successor in the real and Julia, would Edna the the latter him and tween explicit certainly This was Madison. personal property left always follow a contract not that does enough. To be definite agreement whs con- think, moreover, We be detailed.' must that adequate consideration, and by an supported scionable, was contract. referable to the full performance shown seriously disputed. All this conceded, least not is in effect or at proof question The real sufficient whether there case is get Madison Lore’s clearly to establish to that Lore was Edna personal property. under It was contract, merely and his respond- case for point that Chancellor ruled the on that the learned come to a con- record have ents, after a review the whole trary view. reviewing extensively, again
Without we need the evidence Emery testimony Ashby, Purvis, Drake, IT. Hobart T. Bachman, J. M. Phillips, Phillips, Rhodes, Verne Jayne Jud Pruitt, O. J. Leo introduced, clearly and all show Mrs. and the letters or Julia Lore Edna an in the Lore land considered had interest get death; (Julia’s) and most of this an interest at her part evidence ivas receive was the land Edna had or that point went proof Madison had If the no further owned. on this than testamentary part arising disclose a inclination Julia’s obligation, gratitude moral it would affection or a sense of be insufficient case. to make a and scope
But is not effect. evidence thus limited its Along with un- was a contract proof clear that there satisfying get personal der which property, Edna did Madison’s and proof that her Julia loved Edna and intended to have Madison’s land it, and did own have not want her heirs to there is further tes- together that timony yoking showing these two of facts sets get part- part Edna the land under and of the or was as a nership agreement. Emery Ashby part she had turned M.’s told
personal breath property over Edna and in the same stated they partners. To Purvis she and Edna Hobart she said partners рart were property that M. she his when died turned Phillips Edna. Her statement to Jud was that going partners place she and Edna were and run always get same everything as M. run it. had belonged including land, M., part together quoted going together. Leo Bachman and work saying part, have M.’s “she she wanted Edna to and added help also said M. if when died she she would stay doing.” go M. do like her and would Jayne consulting attorney M. J. testified M. I another Julia said: “When told Edna matter if stay part;” stipu- I her M.’s would with me would present agreed lation of if Pruitt were counsel it was that Mrs. agreed (Julia) testify she would Julia told her she stay farm and run it help Edna would on the give her M. owned when he died. *10 only is witnesses perhaps It true that out of all of these Jayne Pruitt, really two last mentioned, Mr. and Mrs. can be said categorically have testified that Edna became entitled arrangement. under But the that there contractual fact greater point considerably of a two witnesses on this number, told, all does not itself the evidence signify adequate. Indeed, substаntial and has said testi- court mony be sufficient establish oral may o'f even one witness an Frauds, conveyance against contract for the Statute of convincing. Thompson, story if his is v. clear [Merrill testimony 161 W. Mo. S. The of the two 678.] think, of that character, in the instant cause was witnesses and true, strongly evidence. It is is corroborated the other Jayne terms also, Mr. nor Mrs. Phuitt testified in that neither Jayne get contract. under the To Mr. Edna Lore to M.’s‘land part,” but from rest Julia said she was to Edna “M.’s Mrs. is apparent land; thе conversation it this referred to his M. agreed Pruitt she had Edna “all she said necessarily owned land. when he died.” included his To our .This altogether. proof satisfying, minds is taken chan- II. respondents point But make the further the able way, cellor found the other who tried this ease below findings. be accorded Such is deference should though course unquestioned rule in Missouri— e(ln^y is not bound cases this court conclu mainly applied the rule is trial court—but sions 26 W. conflicting. Pierce, v. S. when the oral evidence is [Reavеs conflicting. respondents (2d) is not The evidence here 611.] can see witnesses on one evidence. We how the introduced no- other, judge or how the might each trial side of a case contradict advantage passing credibility their from the might have an testify, heard them even present and saw and fact he was for and there was no counter- though they party one advantage respect we have But, in one vailing evidence. perspective all the evidence in that we view can
the trial court re-read record, read, and retain before printed from the parts of eye comparison the various each witness’s mind witness with others. This method of each testimony and that above to the conclusion has led us stated. examination objection appellant’s abstract of make Respondents III. Jayne testifying J. M. witness say.it shows the They record. *11 part,” M.’s whereas arranged “she had arranged exceptions says bill of ^VIjS “she reply ours.) in money-” (Italics Appellant in her abstract correctly copied
brief insists the bill original suggests be doubt bill the matter in County. exceptions brought of Knox up from the Circuit Court respond- unnecessary. But think made this is The statement a’part in challenging appellant’s appears ents abstract Abstract Argument their brief Insufficient entitled, “Brief additional They prepare of the serve an Record.” did In required this court. abstract of the record Rule as duty appellant’s present these it is our take the circumstances as abstract submitted. given the reasons the cause is reversed and remanded Nor judg- County
directions to the Enos? to enter its Circuit Court of specifically enforcing ment contract out in and decree set vesting appellant fee appellant’s Edna Lore the answer simple plaintiffs’ petition and title to all land described in the southeast appellant’s except the west half of the answer quarter quarter, fourth and the of the southwest northeast (29), north- and the northwest fourth of the Twenty-nine Section Sixty-fоur quarter Thirty-two (32), Township all in east of Section (12) County, (64), Range west, Missouri; Scotland Twelve appellant vest in as to 160 acres last described the decree undivided interest and in the heirs of Edna Lore an one-half interest; half deceased, remaining undivided Lore, partition further herewith. proceedings such are not in conflict Lindsay Sedñon, GG-, concur. foregoing opinion by Ellison, C.,
PER is a- CURIAM: —The All opinion judges of the court. concur. dopted Margaret Regina Appellants, Millsap, v. Anna Lawnick Lydia Heydе. Schultz Frank Kinsall Schultz, Bowman (2d) 658. W. S. Banc, en June Court notes hand, There cattle, was sufficient livestock on mostly to meet indebtedness, paid on off, and it was later but it took hard work going. record keep the farm to do business it and to The eight years shows without contradiction that for seven or between too, like Edna, matter, and Julia for that toiled gum a slave. She waded in the mud in boots feeding hogs dehorning cattle. The evidence is treat- that she assisted in cattle; ing dehorned; put steers that had been mediсine caustic steers on lump jaw; harness; had the pulled, mended and on one occasion attempted pull, wagon a cow of the mud with team. So, satisfying proof clear with there was kind some fully partnership contract between Julia which was performed by Edna, under which she personalty, Madison’s shall ascertaining examine the evidence a view to what terms were, contract and whether it her Madison’s entitled real estate also. did plaintiffs put any not evidence disprove thе simply contract. contend made They showing that the appellant was insufficient. incompetent Edna was questions issue, as a witness on the main under at Section Julia, alleged Revised party Statutes because the other to the identify partner- contract was dead. She was used certain ship book accounts. county H. T. Drake was prop- assessor in He assessed the erty carrying and Edna Lore. the same as it had been and taking belonged Madison’s share. His to her. Madi- son had died in long November, theretofore. The wit- ness was asked if he assessed their land and ascertained whether