82 Ark. 33 | Ark. | 1907
(after stating the facts.) First. A careful consideration of the testimony as a whole convinces us that Dr. Young intended at some time to give appellees the lands respeclively claimed by them, but that he died without effectuating his purpose.
1. Appellees ask for the specific execution of a parol gift of lands, and the causes must, be treated as if Dr. Young were living and the appellees were seeking' to compel him to make them deeds. Meigs v. Morris, 63 Ark. 100. Would the evidence warrant such relief? Robert Medearis first suggested the idea to Dr. Young of providing a home for his father, but he says: “I did not ask my uncle to give the farm absolutely to my father, but to give it to him as a home to occupy and have the use of." He further says: “My father and sister, Julia Crawford, saw every letter I received from Mr. Young with reference to this business. They understood that they were to keep the taxes paid and keep the place in repair, and were to have all the proceeds of the farm. The ‘McClain farm’ was bought on the same conditions that the -Crawford farm -was bought.” “Mrs. Ellis fully understood before she went on the place that they were to go on the farm, have all the proceeds and were to pay the taxes and keep up the repairs.” This testimony is certainly corroborated by the letters of Dr. Young to Robert Medearis showing the purpose for which the “Thomasson place” was purchased, and the character of the tenancy under which it was entered and held. The “McClain place” was bought and held upon the “same conditions.” This evidence shows that appellees entered into the possession and held the lands claimed by them in recognition of and in subordination to the title of Dr. Young. It reveals that the purpose of Dr. Young was to retain the title to the property while giving to his kindred the use and enjoyment of the proceeds thereof. Such at least was his understanding at the time the purchases were consummated and the possession of appellees taken, and such also must have been the understanding of appellees. If not, there was no understanding or agreement about it clearly and conclusively proved.
Equity, upon such state of facts, will not grant a remedy of specific execution. Moore v. Gordon, 44 Ark. 334; Sutton v. Myrick, 39 Ark. 424. See, also, Fielder v. Warner, 78 Ark. 158.
2. Although Dr. Young intended, at the time he purchased the farms in controversy and put appellees in possession, to retain the title in himself while allowing appellees the use thereof. does the proof show that he afterwards changed his mind, and that he made a parol gift to appellees which should now be enforced? In letter of November, 1884, to Mrs. Crawford, Dr. Young says: “You may consider it yours at the death of your father.” He also adds: “But when I write my will, if there should be another daughter, your sister, unprovided for, I shall include her in the gift.” This letter shows that at this time he had not renounced dominion over the property. In 1895, Dr. Young told Mrs. Crawford that the place was hers; that “the deeds had been made out, and he had them in a tin box at home;” and in 1896, after she had made some improvements on the place, he told her that he was glad of it, that the place was hers, and he wanted her to be comfortable on it. In letters to Mrs. Ellis prior to 1877 Dr. Young wrote of his desire and purpose to purchase her a “home all of her own,” and after the “McClain farm” had been purchased and she had gone into possession, as late as 1885 and again in 1895, in letters to Mrs. Ellis, writing of- the farm he designates it “your farm,” “your place.” On June 13, 1901, Dr. Young filed in the United States District Court a schedule of assets purporting to contain all his estate real and personal, duly verified, in which he did not list the farms in controversy. This schedule and the expressions in his letters above set forth tend most strongly to show that at this time Dr. Young had renounced all ownership of the farms in controversy. If this were all, we should feel constrained to say that he had made a parol gift of these farms to appellees. But in a letter written to Mrs. Ellis he says: “Your deeds are in no danger, yours and Julia’s. They are in safe hands in Cincinnati Valley. At a proper time new deeds will be made out.” This letter was without date, but it was evidently when he was in the midst of the financial troubles which were causing him to go into bankruptcy. Eor in the same letter he speaks of an offer to compromise without law-suit, upon his payment of six thousand dollars. The above letter was written after the letter of February 22, 1901, to Robert Medearis, for he speaks of their deeds as being “in safe hands,” etc.
In the letter in which he sent the deeds' (February 22, 1901) he instructs his nephew to “quietly hold these” until he instructed him “what to do with them.” In another letter to Robert Medearis, also without date, but evidently after the letter to Mrs. Ellis in which he mentioned the proposition for compromise, he says: “I accepted and paid the cash ($6,000) without mortgaging a grain of sand either in Tennessee or Arkansas.” These letters contain the last expressions of Dr. Young concerning' the lands in controversy.' Robert Medearis testified that, after the receipt of the letter containing deeds and instructing him to hold same until further instructed, he received no further instructions.
It therefore appears from these last letters and this testimony that Dr. Young died retaining the ownership and control of the lands. These deeds were not delivered; he reserved the power to further instruct his agent “what to do with them.” He said new deeds would be made, thus reserving the power to convey in the future, but he never made them, and “death took him” before the final act was performed passing the title from him' to his beloved kindred in Arkansas.
3. But, if we are mistaken in the facts, and there was a parol gift, will equity, under the proof, enforce it? “A parol gift of land,” says Prof. Pomeroy, “will not be enforced unless followed by possession and by valuable improvements made by the donee, or unless there are some other special facts which would render the failure to complete the donation peculiarly inequitable and unjust.
“This rule however, has no connection with the statute of frauds. In order to grant its remedy of a specific execution, equity requires a valuable consideration — it never enforces a voluntary agreement. * * * The doctrine therefore has been generally accepted that, when the donee takes possession and makes outlays upon valuable and substantial improvements in execution of the donation, or does other analogous acts which would render a revocation or refusal to complete inequitable, a parol gift of land will be specifically enforced, since the labor and expenditures of the donee supply a valuable consideration, while the possession and betterments constitute a part performance which obviates the statute of frauds.” Pom. Spec. Perf. Cont. (2 Ed.), § 130, and many cases cited in note. Guynn v. McCauley, 32 Ark. 97; Freeman v. Freeman, 43 N. Y. 34; Kurtz v. Hibner, 55 Ill. 514; Hardesty v. Richardson, 44 Md. 617; Frame v. Frame, 32 W. Va. 463, 5 L. R. A. 323, all cited in able brief for appellees. “Slight and temporary improvements, or trivial outlays, however, do not raise an equity in favor of the donee to have the gift enforced. * * * The gift must be established by certain and unmistakable evidence, and the fact that the improvements were made in consequence of and in reliance upon it must also be directly and unequivocally proved; proof merely that the donee has received possession of the land, and has made improvements upon it, will raise no presumption of his purpose and intent, nor furnish a sufficient ground for the specific equitable relief.” Pom. on Spec. Perf. Cont. 131.
Appellee Julia Crawford and her father took possession of the land she claims in 1874. These suits were begun in June, 1903. Appellee, Mrs. Ellis, took possession in 1877. The improvements put upon the land by Mrs. Crawford were estimated by her brother Robert Medearis to cost about $200, and those placed upon the lands by Mrs. Ellis were shown to have cost a little more than $500. The rents of the farm occupied by Mrs. Ellis were about $100 per annum. It will thus appear that these improvements extend through a period of more than a quarter of a century. A majority of the court are of the opinion that these improvements are hardly of that valuable and permanent character that would render it inequitable to refuse appellees the relief prayed on account of them. The fact that the rents or the proceeds from the use of the premises greatly exceeded the cost or value of the improvements should not perhaps be made a distinct ground for the refusal to execute' a parol gift. Young v. Overbaugh, 39 N. E. (N. Y.), 712; Moyer’s Appeal, 105 Penn. St. 432; Wooldridge v. Hancock, 6 S. W. Rep. 818. But certainly such fact should be considered in determining- the nature and extent of the alleged improvement, and in testing the alleged grounds for equitable interposition. See Pomeroy, Spec. Perf. Cont. § 131 and Moore v. Gordon, 44 Ark. 334.
The court is of the opinion that the possession of appellees and the improvements made by them would not, under the evidence, entitle appellees to compel Dr. Young, if he were living, to make them deeds to the lands in controversy. Equity must deal with his estate and his heirs as it would have dealt with him.
The decree is reversed,, and the cause is remanded to the chancery court of Washington County with directions to dismiss the cross-complaints for want of equity, and to enter a decree for appellants assigning dower to Mrs. Anna G. Young according to the statute in such cases and giving the possession of the remainder of the lands, described in the exhibits to complaint, to the administrator of the estate of Dr. Young and to proceed in manner not inconsistent with this opinion.