118 Wash. 221 | Wash. | 1922
— By this action the plaintiff sought a decree of the court establishing in her the free, sole and undisturbed use and occupation, during her natural fife, of a certain five-acre tract of land located in King county, Washington, and further sought to enjoin the defendants from trespassing upon, or in any wise interfering with or using, the land. After trial, the court made its findings and conclusions in favor of the plaintiff, and its judgment based thereon decreed that the plaintiff “have the free, sole and undisturbed use and occupancy of tract No. 4 of Kent Five-Acre Tracts, in King county, Washington, during the period of her natural life,” and that “the defendants and each of
The important facts are as follows: The respondent is the mother of the appellant Emery D. Vaut. In 1902, she and her husband were living on rented land near Seattle and were approaching old age, with very little money or property. The appellant Emery D. Vaut was unmarried and was either living in Alaska or intending shortly to go there to live. He purchased the tract of land in question for $1,250, paying down a small sum and agreeing to pay the balance in twelve monthly payments. Within a few weeks after making the contract of purchase he married his coappellant, and all of the balance of the purchase price was paid out of community money. After the purchase of the property, the respondent and her husband moved onto the land and continued to reside there until the death of the husband in 1918, since which time she has continued to reside there. The appellants lived in Alaska from 1902 until 1918. In 1918 they removed to the state of Washington, and have since lived with the respondent on the five-acre tract.
Whatever rights respondent has in the land rest entirely in an oral gift or agreement. She testified as follows: “We were to have it (the land) as our own as long as we lived and improved it. . . . Emery H. Vaut told me that — well, we were living at our daughter’s at the time and my son he proposed that he buy this place for us, as we had no other place, only as we would rent and secure it in some other way. He proposed that we go on this place. He was buying it on the installment plan, and that we could improve it and it would he our home as long as we lived. ’ ’ The
It is our opinion that the judgment must be reversed. The respondent’s testimony wholly fails to show that she and her husband were to have the exclusive possession of the land during their natural lives. Under her testimony, the most they were to have was a home on this land as long as they lived. This would not prohibit the appellants from also making their home on the same land. The judgment gives to the respondent the sole and exclusive possession of the land and drives the appellants therefrom.
But there is another reason why the judgment cannot be affirmed. The oral agreement sued upon is primarily in violation of the statute of frauds. While an oral gift of, or agreement concerning an interest in, real estate may be proved under certain circumstances, the courts universally hold that such agreement must be established by clear, convincing, unequivocal and definite testimony. Sturgis v. McElroy, 113 Wash. 192, 193 Pac. 719, and cases there cited. The testimony in this case falls far short of complying with that rule. The respondent was the only witness whose testimony tended to establish the original gift or contract. It is true, her daughter also testified, but her testimony is so very general in character as to be wholly without value in this regard. So that we have here the testimony of the aged mother to the effect that her son gave her the use of the property during her natural life, and the testimony of the son denying such contract.
It is very sincerely to be hoped that the parties to this action may compose their differences and abide together in harmony on the land, and that the respondent be permitted to spend there the remainder of her days, but no amount of sympathy which we
Parker, C. J., Fullerton, Mitchell, and Tolman, JJ., concur.