206 Wis. 513 | Wis. | 1932
The questions arising upon the appeal maybe considered under three heads: (1) Whether the county court has jurisdiction to decree specific performance of a contract of a deceased person to transfer real estate. (2) Whether the evidence supports the finding that an oral agreement to transfer was made by the deceased. (3) Whether the acts of the respondents constitute such execution of the oral contract on their part as to warrant a decree for specific performance.
(1) Sec. 296.02, Stats., gives concurrent power to the circuit and county courts to compel specific performance of contracts made by deceased persons. Sec. 296.04 provides that whenever any person who is bound to convey any real estate shall die before making the conveyance, either such court may upon action by the person entitled to the conveyance require the personal representative of the deceased person to convey the real estate in like manner as the deceased “might or ought to .have done if living.” These provisions leave no doubt of the jurisdiction of the county court to decree specific performance when the contract of the deceased person was to “convey.” If the contract had been to convey by deed, there could be no question of the jurisdiction of the county court to enter the decree appealed from. The understanding of the respondents was that the deceased would execute a will rather than a deed. Execution of either a will or deed by the deceased would have constituted performance of his obligation. The contract having been made, it was the duty of the deceased to do one or the other. Fie “might have done” either. He “ought to have done” one or the other. We consider that under the terms of sec. 296.04, although it is indefinite which the deceased should do, inasmuch as it appears he should have done one or the other, the county court had jurisdiction and it was appropriate to decree a conveyance by the executor. It has been held that specific performance lies fo enforce an agreement to devise real estate in Brown
(2) It is well established that specific performance of a contract will not be decreed unless it is established by clear, satisfactory, and convincing proof. Marshall & Ilsley Bank v. Schuerbrock, 195 Wis. 203, 217 N. W. 416; Royston v. Frost, 201 Wis. 240, 229 N. W. 71; Blanchard v. McD
(a) The respondent Lottie was an orphan, the child of a sister of the deceased, whom he took into his home on her mother’s death when she was two years old and reared as his own child. The deceased was childless, except for a demented son, and regarded Lottie as his own daughter. The wife of the deceased was not well and Lottie performed
(b) The respondents moved back to the Powell farm at the solicitation of Powell and continued in possession thereof until Powell’s death nearly twenty years thereafter. The Powell farm was ill-kept and run down; the buildings were dilapidated, except the barn which was unfinished; it was not nearly so attractive or remunerative as a renting proposition as the farm the Wilcoxes left. Powell lived at a small hamlet a half mile from the farm, but a room was always kept ready for his use in the house on the farm. Mrs. Wilcox did his washing mostly and looked after him in a general way until his marriage eight or nine years before his death. From the time they went on the Powell farm the Wilcoxes worked and managed it as they would a farm of their own. Wilcox cleaned it and kept it clean of quack grass and Canada thistles; cleaned out fence rows; built new fences; repaired the house and kept it in repair; helped finish a barn in process of construction; built a hog
(c) Four disinterested and apparently highly responsible and trustworthy persons testified that Powell had told them that “Lottie and George would have the farm some day and might want timber on the farm (which witness wished to buy) to build a house with.” “Wilcox was not an ordinary renter; Lottie was to him as a daughter, nearest and dearest to him of any one on earth; the farm will go to her some day.” “The place is going to be Lottie’s and whatever sized silo they (the Wilcoxes) want I will have to build.” The witness would have “to see George and Lottie about a lighting plant at the farm because the farm went to Lottie when Powell was through with it. When Powell was through with the farm it went to Lottie.” Others testified to statements made by Powell after his marriage, when the new wife was suspicious of and hostile to the Wilcoxes, to the general effect that the Wilcoxes had no claim to the farm. These were self-serving statements not receivable in evidence. Will of Klehr, 147 Wis. 653, 133 N. W. 1105.
(d) The Wilcoxes testified that an agreement was entered into between Powell and them before they moved onto the farm; the agreement was not a lease; the Wilcoxes were to move on and fix up the place as their own; they went onto the place solely because of the agreement made; Lottie was to have the place; they expected Powell to will the farm to her.
The trial judge might properly find the evidentiary facts as above stated, and we consider that their cumulative force warranted the inference of ultimate fact that a contract to transfer the farm was made.
While in some of the cases that have reached this court wherein the trial court found that a contract to transfer was not made, the statement of facts contained in the opinion would seem as strong in support of a contrary conclusion as are the facts here, in several of them, particularly the Dilger Case, supra, wherein an agreement to transfer was held properly inferable, it would appear from the opinion that the evidence was not nearly as strong in support of such inference as it is here.
(3) It is urged that there was no such partial performance by the respondents as to warrant specific enforcement of the contract because the proof does not show that the respondents entered upon the land as and solely as a result of the contract. That the entry must so result is held in Bowen v. Warner, 1 Pin. 600, and many other later cases. But there is testimony of the respondents themselves to the precise point that they did so enter, and the circumstances indicate that they would not have gone upon the farm as mere tenants and that they did not so enter. It is urged that possession alone and that services alone do not constitute sufficient performance. While it may be that no one
By the Court. — The judgment of the county court is affirmed.