48 Mo. 527 | Mo. | 1871
delivered the opinion of the court.
The plaintiff, Thomas Underwood, Joseph H. Underwood, deceased, and one Albert Underwood, were-brothers, and children of Thomas Underwood, deceased, who died seized of the land in controversy. The petition charges that during the life of said Joseph H. the plaintiff purchased by parol and paid, for his interest in the property; that he took possession under the purchase and made valuable improvements; that his brother promised to make a conveyance of his interest, but died without having done so; and a specific performance is asked for. The case went to trial and the plaintiff obtained judgment.
Counsel for defendants claim, first, that, inasmuch as the plaintiff was a coparcener, he was always constructively in possession, and no such possession could be given him as would constitute an act of part performance.
And in the case , at bar, if it should appear by evidence independent of that proving the contract, or in addition to such proof, that the deceased abandoned his claim to the land as a coparce-ner, and that the plaintiff took and held possession under the
■ In this regard the present record signally-fails, for the extent of the purchase does not appear.' The petition calls for land in three different sections, and eighty acres in one section must be-half a mile at its nearest-point from: any of the rest of the land. The witnesses do not describe the-property, but only speak of it as the home farm, and there is no evidenoe-that, nil this land was included in the home farm.- There is nothing -otherwise to show, or that tends- to show, what was- embraced in the contract. Hence the evidence fails in the -definiteness that would pertain to a written-instrument. The-evil -to be-guarded against, and which prompted the statute; -is not only the temptation to- fraud and perjury;- but -the liability to mistake in trusting to- the memory as to the-extent-and details of the contract; and if it is enforced at all, there should be no -doubt as to-its terms,-and-especially as to the property embraced in it.
But not-only "is there this lack of • precision -as to the property-, but the evidence of the contract itself is inconclusive'.1" It consists wholly of - the - declarations of the- deceased. Several witnesses testify that they heard him say that he had sold the place to his brother and received his pay; some speak of an exchange and paying for the difference, but what was exchanged dobs not appear. No one' saw them together making the negotiation; there is no- other evidence that'-any-money passed between'them, or that either had the amount about the time of' the transaction under circumstances pointing to it-; nor do T find anything to sustain the alleged'declarations except the possession of- the plaintiff-; and that, as wé have seen;-can-be otherwise accounted for. On the other hand, declarations of the plaintiff are given incon
While evidence of declarations of parties is admissible, it should always be cautiously received, even while they are living, and in respect to agreements not required to be in writing. It has less weight when the parties are dead and can neither contradict nor explain them, and especially concerning a class of contracts that require unequivocal proof. Thus, when a resulting trust is claimed, as arising from the purchase of land by a deceased person with funds of the claimant, evidence of the declarations of the deceased is deemed inconclusive in its character unless supported by circumstances. (Johnson v. Quarles, 46 Mo. 423.) So, in establishing a contract like the one under consideration, it is doubtful, when established, whether equity should enforce it j but that question will not be considered until the existence of the contract is satisfactorily shown. Less conclusive evidence will suffice when possession is given under the agreement, for the possession itself tends to show some kind of an agreement; but when the possession may be otherwise accounted for, the declarations of deceased persons should receive some other support. There is room for doubt whether the evidence is fully spread out' in the record. There is ambiguity in the report of the' testimony of the principal witness, and there are other indications that the facts are not fully developed.
In reversing the judgment the case will be remanded for a, new trial.