Opinion
No. 39448.
December 3, 1945. Motion for Rehearing or to transfer to Banc Overruled, January 8, 1946.
1. WILLS: Conveyance Revokes Devise. A conveyance of land, after a devise thereof, operates as a revocation of the devise.
2. DEEDS: Contracts: Specific Performance: Equity: Agreement to Transfer Real Estate Enforced against Estate. The evidence shows that the testator had intended to give a farm to each of his children; that the son John had improved a farm in Wayne County purchased for him; that when the United States government was about to condemn this farm it was sold to the government and the proceeds were used to purchase in its place another farm selected by the son. The evidence was sufficiently clear, cogent and convincing to establish the contract and performance on the part of the son.
Appeal from Cape Girardeau Circuit Court. — Hon. J.C. McDowell, Judge.
AFFIRMED.
J. Grant Frye for appellant.
(1) The contract pleaded in the cross bill was that if John would go on the Wayne County land and clear, improve, cultivate, and operate said farm the deceased would either deed or devise the land to John, which allegation is not sufficiently clear, explicit, and definite as to state a cause of action. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; Sec. 3354, R.S. 1939. (2) There is no evidence as to the existence of the alleged agreement pleaded in the cross bill, as the testimony of the witnesses had to do with declaration of the deceased showing merely a disposition to bestow a bounty upon John and not to have entered into a contract for the conveyance of real estate on account of performance of the conditions of the alleged contract. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024. (3) The most favorable testimony of the witnesses as going to show a state of mind of deceased to deed or devise the Wayne County land to John are too ancient, loose, and casual to furnish the basis for a finding that the deceased was about to enter into or had entered into the contract alleged in the cross bill, and such alleged conversations show at the most a mere disposition to deed or devise this land on account of sympathy with John rather than on account of any contract to deed or devise the same because of acts of performance of a contract by John. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024. (4) The alleged conversations of the deceased, as well as the alleged acts of performance by John, are more naturally referable to a disposition on the part of deceased to make John the object of his bounty because of sympathy for him on account of his being a cripple, or on account of affection for him and his wife because of their treatment of him, than to the performance or recognition of a contract touching upon the conveyance of the Wayne County land; and none of deceased's alleged statements is referable to entering into a contract, and for those reasons his alleged statements are insufficient as a matter of law to sustain the cross bill. Shaw v. Hamilton, 141 S.W.2d 817, 346 Mo. 366. (5) Taken in its most favorable light, the evidence that tends to sustain the cross bill of defendant John Peterein, Jr., is not sufficient to make a prima facie case in support thereof in that the acts and conduct of the parties are not shown to be referable solely to the contract as alleged in the cross bill and as not excluding other relations between the parties that might likewise be interpreted from the evidence under the cross bill, and do not support the allegations thereof, and are not sufficient to show as a matter of law the existence of the contract alleged, and at the most show only isolated statements of the deceased not arising to the dignity of the consciousness of an intention of assuming a contractual obligation. Forrester v. Sullivan, 231 Mo. 345, 132 S.W. 722; Hersman v. Hersman, 253 Mo. 175, 161 S.W. 800; Hinkle v. Hinkle, 236 S.W. 30; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Davis v. Falor, 346 Mo. 514, 142 S.W.2d 76; Maness v. Graham, 346 Mo. 738, 142 S.W.2d 1009, 132 A.L.R. 225; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432. (6) Assuming that the evidence was sufficient prima facie to establish a cause of relief under the cross bill, still, the evidence adduced in that behalf is not sufficiently clear, cogent, and convincing as to establish beyond a reasonable doubt that there was the contract existing as alleged in the cross bill and that there was performance thereof. Walker v. Bohannon, 243 Mo. 119, 147 S.W. 1024; Shaw v. Hamilton, 141 S.W.2d 817; Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726; Stibal v. Nation, 98 S.W.2d 724; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W.2d 905; Heller v. Jentzsch, 303 Mo. 440, 260 S.W. 979; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Gibbs v. Whitwell, 164 Mo. 387, 64 S.W. 110; Alexander v. Alexander, 150 Mo. 579, 52 S.W. 256. (7) The evidence of Senator M.C. Matthes concerning the conversations and transactions with deceased at the time the deeds to David and Mrs. Beffa were written were in a professional capacity and were privileged communications and the trial court should not have admitted such evidence over the objection of Mrs. Beffa who was claiming under the deceased, there being no waiver of the privilege. Sweet v. Owen, 109 Mo. 1, 18 S.W. 928; Ex parte Schneider, 294 S.W. 736; Pinson v. Campbell, 124 Mo. App. 260, 101 S.W. 621.
M.C. Matthes for David A. Peterein, respondent, and Rush H. Limbaugh for John Peterein, Jr., respondent.
(1) The cross action of John contained all the allegations necessary to state a cause of action in equity for the specific performance of the contracts alleged. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214. (2) To state such cause of action, it is sufficient to allege a promise to give land, an entry into possession by the promisee, followed by the making of improvements in reliance upon such promise, and a failure to perform by the promisor. The cross action here contained such allegations. Findley v. Johnson, 142 S.W.2d 61; Vesser v. Neff, 214 S.W. 185; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214. (3) It is proper to allege such cause of action as a cross action in a suit involving title to or possession of the land. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Anderson v. Shockley, 82 Mo. 250. (4) This court has uniformly held that when a father promises a son a tract of real estate and the son, in reliance on the promise and with the consent of the father, enters into possession of the land, operates it for a long period of years, makes valuable and lasting improvements on it and the father fails to make good his promise, the case is taken out of the statute of frauds, the son stands in the position of a purchaser and is in equity entitled to specific performance of the father's contract. Keltner v. Threlkel, 316 Mo. 609, 291 S.W. 462; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214; Halsa v. Halsa, 8 Mo. 303. (5) The trial court correctly held that this case came within the rule announced in point II herein and that deceased promised John the Wayne County farm, that John entered into possession, cleared the land and made lasting improvements on it in reliance on deceased's promise and was entitled to specific performance when the United States acquired the Wayne County farm; and the trial court correctly held that deceased promised John, when he took the proceeds of the Wayne County farm and invested them in the Cape Girardeau County farm, that the latter farm would be John's and, since John went into possession thereof, relying on deceased's promise, he was entitled to specific performance of such promise. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Findley v. Johnson, 142 S.W.2d 61; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W.2d 905; Schweizer v. Patton, 116 S.W.2d 39; Broz v. Hegwood, 349 Mo. 920, 163 S.W.2d 1009; Vesser v. Neff, 214 S.W. 185; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; West v. Bundy, 78 Mo. 407; Gupton v. Gupton, 47 Mo. 37; Halsa v. Halsa, 8 Mo. 303; 1 Pomeroy's Equity Jur. (5 Ed.), pp. 378-385, sec. 221b; 2 Pomeroy's Equity Jur. (5 Ed.), pp. 21-25, sec. 368; p. 33, sec. 372; 4 Pomeroy's Equity Jur. (5 Ed.), p. 479, sec. 1161; pp. 1033-1058, secs. 1400-1410; 49 Am. Jur., p. 617, sec. 2; pp. 10-18, secs. 6-19; pp. 31-33, sec. 21, (6) Although equity requires in actions for specific performance that proof of the contract be clear, cogent and convincing before it will decree specific enforcement, such a contract does not have to be shown in detail. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Smith v. Lore, 325 Mo. 282, 29 S.W.2d 91. (7) Nor does proof of a contract have to be made by a technical accuracy of expression on the part of lay witnesses who have little knowledge of the law of real estate, but it is sufficient if the intention of the promiser is adequately and definitely established. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Sutton v. Hayden, 62 Mo. 101. (8) The testimony of one witness alone has been held sufficient to establish an oral contract if his relation of the circumstances and intention of the parties is clear and convincing, even though such testimony is contradicted by other adverse witnesses. The testimony here by the principal witness as to the original promise was supported by other material evidence; and there was no contradictory or adverse evidence offered. Findley v. Johnson, 142 S.W.2d 61; Smith v. Lore, 325 Mo. 282, 29 S.W.2d 91; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674. (9) If an oral contract is ambiguous or there is reasonable doubt as to its meaning, the court in a suit for the specific performance of it will consider the acts, conduct and declarations indicating a mutual intent and understanding about it by the parties who made it. Schweizer v. Patton, 116 S.W.2d 39; Sutton v. Hayden, 62 Mo. 101. (10) Where, as here, the evidence definitely shows that the father had made "some" contract with the son anl had exacted from the son some "promise" to fulfill the contract, and the evidence further shows that the promise was performed and the contract fulfilled, a court of equity will specifically enforce the contract. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; West v. Bundy, 78 Mo. 407. (11) And where, as here, the evidence shows that the son was for long years in possession of the land without the payment of rent, during which time he placed valuable improvements on the land, such facts indicate that possession was taken and the improvements were made under some kind of contract, agreement or understanding between the father and the son, which contract equity will enforce by a decree of specific performance. Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268. (12) Deceased's declarations and admissions, as related by the witnesses and uncontradicted by other evidence, were not expressions of testamentary disposition or of an inclination to reward for services by way of a gift, but, when considered with undisputed evidence of possession and the addition of improvements, they indicated that the deceased was cognizant of a promise he had made to John, that John had relied on that promise and had earned the farm, that it was John's farm and that deceased was going to get him another farm in the place of this one. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; West v. Bundy, 78 Mo. 407. (13) Where, as here, statements or admissions of a deceased person are shown by oral testimony, in a suit for specific performance of his contract, to have been made in the course of business transactions or while he was concerned about how he would be able to fulfill his obligation to the promisee, and were not casually made in the course of idle conversation, they are considered sufficient to establish a contract specifically enforceable. Findley v. Johnson, 142 S.W.2d 61; Schweizer v. Patton, 116 S.W.2d 39; Burnett v. Hudson, 228 S.W. 462; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674. (14) The fact that some of the witnesses testified that deceased told them he would "give" John the farm, or that he had "given" each one of his children a farm, does not disprove the fact that deceased had contracted to convey the farm to John, especially where the testimony of other witnesses showed that deceased said the farm "was John's farm"; that "he was going to get a farm for John," or that "he had bought the farm for John." Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 S.W.2d 905. (15) Specific performance will be granted where the very justice of the thing calls for it. Sportsman v. Halstead, 347 Mo. 286, 147 S.W.2d 447; Findley v. Johnson, 142 S.W.2d 61; Ver Standig v. St. Louis Union Trust Co., 344 Mo. 880, 129 881 S.W.2d 905; Schweizer v. Patton, 116 S.W.2d 39; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674; McQuitty v. Wilhite, 247 Mo. 163, 152 S.W. 598; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901. (16) A decree for the specific enforcement of a contract like the one here does not have the effect of vesting title as for a voluntary conveyance or as a conveyance in the nature of a gift, but it does have the effect of vesting title by the enforcement of a contract that is supported by a valuable consideration promised and paid. Vesser v. Neff, 214 S.W. 185; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Hall v. Harris, 145 Mo. 614, 47 S.W. 506; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Hiatt v. Williams, 72 Mo. 214; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37; Koch v. Hebel, 32 Mo. App. 103. (17) The remedy here is of the same nature as that where courts of equity specifically enforce oral contracts of adoption, where the contract has been performed by the child, and it would be inequitable if the contract were not specifically enforced. Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885. (18) The incidents, consisting of John's taking possession immediately after the contract was made and continuing in possession of the Wayne County farm until it was sold, paying no rent on it, and putting valuable improvements thereon by way of clearing, fencing and building, and taking possession of the Cape Girardeau County farm as soon as it was substituted for the Wayne County farm, and paying no rent for it, are convincing evidence in support of the contract and are sufficient to take the case out of the statute of frauds. Hobbs v. Hicks, 8 S.W.2d 966; Cave v. Wells, 5 S.W.2d 636; Scheerer v. Scheerer, 287 Mo. 92, 229 S.W. 192; Vesser v. Neff, 214 S.W. 185; Hubbard v. Hubbard, 140 Mo. 300, 41 S.W. 749; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407. (19) Although legal title was vested in deceased, he held it subject to his promises to vest it in John, and it is one of the functions of courts of equity to divest the legal title and to vest it according to the equitable interests created by the owner of the legal title and those to whom he has promised to convey it. 1 Pomeroy's Equity Jur. (5 Ed.), pp. 378-385, sec. 221b; Manning v. North British Mercantile Ins. Co., 123 Mo. App. 456, 99 S.W. 1095; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268; Smith v. Lore, 325 Mo. 282, 29 S.W.2d 91; Vesser v. Neff, 214 S.W. 185. (20) When the Wayne County farm was sold, the right to specific performance existed in favor of John for, as admitted by the declarations of deceased, John had performed his part of the contract and had the complete beneficial interest in the farm. Whether John had performed services sufficient completely to pay for the farm had no effect, for the fact that services may have been of less monetary value than the property makes no difference on the question as to whether equity will grant relief. Campbell v. McLaughlin, 205 S.W. 18; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674; Berg v. Moreau, 199 Mo. 416, 97 S.W. 901; Sutton v. Hayden, 62 Mo. 101. (21) When, at the very time of making the deed conveying the Wayne County farm and accepting the proceeds of the sale price of that farm and simultaneously applying same to discharge the purchase price of the Cape Girardean County farm, deceased, as original promisor, accepted the title to the Cape Girardeau County farm, he took it burdened with the same equities as existed against the Wayne County farm. Hilgedick v. Nothsteine. 289 S.W. 939; Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946; Randolph v. Wheeler, 182 Mo. 145, 81 S.W. 419; Hagman v. Shaffner, 88 Mo. 24. (22) After this transaction, deceased held legal title under a constructive trust for John, and courts of equity will specifically enforce his contract and agreement to vest title to this land in John. Finn v. Barnes, 101 S.W.2d 718; Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946; Bryant v. Stahl, 217 S.W. 31; Kirkpatrick v. Pease, 202 Mo. 471, 101 S.W. 651; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268. (23) Equity will compel specific performance to prevent the perpetration of a constructive fraud upon John. Finn v. Barnes, 101 S.W.2d 718; Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946; O'Day v. Annex Realty Co., 191 S.W. 41; Carney v. Carney, 95 Mo. 353, 8 S.W. 729; Dozier v. Matson, 94 Mo. 328, 7 S.W. 268. (24) John's right to relief against the deceased can be properly pursued against deceased's heirs who are not willing to recognize John's right to the land, for the rule is that where a vendor contracts to convey land, and dies before the conveyance is made, specific performance lies against his heirs. O'Day v. Annex Realty Co., 191 S.W. 41; Evans v. Morris, 234 Mo. 177, 136 S.W. 408; Kirkpatrick v. Pease, 202 Mo. 171, 101 S.W. 651; Randolph v. Wheeler, 182 Mo. 145, 81 S.W. 419; Hiatt v. Williams, 72 Mo. 214; Sutton v. Hayden, 62 Mo. 101; Koch v. Hebel, 32 Mo. App. 103. (25) Deceased's subsequent declarations of his intention to convey to John confirm his contract to convey and the fact that John was entitled to the land. Bryant v. Stahl, 217 S.W. 31. (26) Deceased's position of being constantly on the alert to get John another farm and get him in possession of it, until that purpose was accomplished, further confirms his sense of obligation to John. Vesser v. Neff, 214 S.W. 185; West v. Bundy, 78 Mo. 407; Sutton v. Hayden, 62 Mo. 101. (27) The testimony of Mr. Matthes concerning deceased's expression of an intention to deed the Cape Girardeau County farm to John was admissible because this conversation was not between an attorney and a client, but between the client and a third person in the presence of the attorney. Besides, it concerned matters about which no legal problem was brought forward by the client. 8 Wigmore, p. 571, sec. 2297, p. 603, sec. 2311; Clark v. Skinner, 70 883 S.W.2d 1094; Johnson v. Antry, 5 S.W.2d 405; Graham v. O'Fallon, 4 Mo. 338.
Plaintiff filed this suit to partition 146.09 acres of land situated in Cape Girardeau county, Missouri. The defendants, David A. Peterein and John Peterein, Jr., were brothers of plaintiff and the three, plaintiff and defendants, were the only children and heirs of John Peterein, Sr., deceased, the mother having died many years ago. David filed an answer disclaiming any interest in [634] the land, having deeded whatever interest he had to his brother John. John filed an answer claiming the whole title on the theory that through a contract with his father he was entitled to the farm. He asked that the court vest the title in him and quiet the same. The trial court entered a decree as prayed for in John's cross-bill and plaintiff duly appealed.
Plaintiff contends that by the residuary clause of the will of her father the land in controversy was devised to the three children share and share alike; that the evidence did not authorize a court of equity to enter a decree that the land belonged to John. Plaintiff contends that the evidence was insufficient to establish any contract by which the father agreed to give John the land in question. To understand the situation as it was presented to the trial court, it will be necessary to relate a brief history of the family with reference to the property in question.
The testator immigrated to this country from Switzerland and settled in Jefferson county, Missouri. The names and other circumstances shown in evidence indicate that they were of Italian descent. The testator married, reared a family and farmed for a livelihood. In the course of years he acquired three farms, title to which he held in his own name. Two of these farms were located in Jefferson county. Missouri, and the other in Wayne county. After the father had advanced in years his eldest son. David, transacted much of his business. When the testator was seventy-nine years of age, which was in October, 1934, he executed a will, the principal portions of which read as follows:
"I, John Peterein, Sr., now residing in Wayne County, Missouri, aged 79 years, being of sound mind, do make and publish this my last will and testament, as follows:
"I have three children living, namely, David A. Peterein, Sr., Martina Beffa, nee Peterein, and John Peterein, Jr., my other child a girl, having died in infancy, and my wife having died in 1907, and I therefore devise and bequeath to my said son, David A. Peterein, Sr., his heirs and assigns forever, my farm near Silica and at said village of Silica, which the said David A. Peterein, Sr., has been farming for the past several years; and to my daughter, Martina Beffa, her heirs and assigns forever, I devise and bequeath my farm near Bailey Station, which said farm is now being farmed by my renter, Alvin Son, both of the above described farms being in Joachim Township, Jefferson County, Missouri; and I give and devise to my said son John Peterein, Jr., his heirs and assigns forever, my farm in Wayne County, Missouri, near Ferry Switch, Missouri, being the farm on which my said son now resides.
"All the rest, residue and remainder of my property, which I may own at the time of my death, whether real, personal or mixed, and wheresoever situated, I give, devise and bequeath to my three living children aforesaid, in equal parts, share and share alike, their heirs and assigns forever."
A few years after the execution of this will the United States Government made plans for the construction of a dam known as the Wappapello dam. The farm in Wayne county, which by the will was devised to John, Jr., was situated within the territory needed for the Wappapello project. The United States Government, through condemnation proceedings and deeds, acquired the lands needed for that enterprise. The testator signed an option wherein he agreed to deed the Wayne county farm to the government. The deed was later executed and the testator received $10,100.00 for the farm. While negotiations were pending for the sale of the Wayne county farm to the government the testator purchased a farm in Cape Girardeau county, Missouri, which is sought to be partitioned in this case. The money derived from the sale of the Wayne county farm was used to pay for the Cape Girareau county farm, the purchase price being $8,900.00. The Wayne county farm had originally been purchased in 1915 for $4,200.00. The sale of the Wayne county farm was consummated March 4, 1940. The testator died in August, 1942. All of the above facts were not disputed.
The law seems to be that a conveyance of land, after a devise thereof, operates as a revocation of the devise. That undoubtedly was the rule at common law. 68 C.J. 842, sec. 543 and 69 C.J. 1007, sec. 2207; Dunlap v. Hart, 204 S.W. 525, 274 Mo. 600, 3 A.L.R. 1493. Under the law, therefore, the land in question constituted a portion of the residuary estate and passed to the three children share and share alike, unless John, Jr., was entitled thereto by virtue of a contract with his father. The application of the rule at common law often seems harsh. This case is a typical example. Here were three children whose father [635] owned three farms. He devised one to each of the children. Subsequently he deeded one of the farms, however, not entirely voluntarily, because had he not deeded it the United States Government would have taken it by condemnation. The cash received was used to purchase another farm.
Under the rule at common law the devisee of the farm sold must divide the new farm purchased with the funds of the farm sold with his brother and sister. With that background we approach the evidence relied upon by defendant John, Jr., in support of his alleged contract with his father.
Appellant in her brief says:
"Assuming that the evidence was sufficient prima facie to establish a cause of relief under the Cross Bill, still, the evidence adduced in that behalf is not sufficiently clear, cogent, and convincing as to establish beyond a reasonable doubt that there was the contract existing as alleged in the Cross Bill and that there was performance thereof."
Many cases were cited in support of that statement. The rule of law is well established that evidence must be clear, cogent and convincing to authorize a court to enforce a contract of this nature. However, courts of equity are courts of conscience and these courts are eager to do justice. Justice in this case is certainly on the side of John, Jr. The evidence disclosed the following with reference to the contract between the father and John, Jr. In 1915 the father owned the two farms in Jefferson county that were devised to David and to plaintiff. He desired to purchase another farm to be occupied by John, Jr., hence, the purchase of the Wayne county farm. As to the understanding had with John witnesses testified as follows: William Estes testified that he sold the Wayne county farm to the father. This witness was asked the following questions and gave the following replies:
"Q. Did you ever talk to John Peterein, Sr., about what he bought it for? A. I heard him say `I don't need the farm myself but I am buying the place for my son John.' Q. Did you ever hear him say anything about that any other time? A. Yes, sir, I heard him say he aimed for John to have the place . . . the rest of them had a farm and he wanted him to have one. Q. On what occasion did he tell you this? A. Well, we would just get to talking."
David, brother of John, Jr., testified as follows:
"A. He told him to move down there and work it — `I have no use for the farm, it is your farm, it will be your place, clear it up and work it, put it in shape,' and he did.
"Q. What did John do? A. He cleared it up; we would go down there hunting and help him clear up a lot of it; got a stump puller and pulled stumps, and made a farm out of it.
* * *
"Q. After John moved on the place tell the court what he did about improving it? A. He went to improving it. Every dime he made he spent on the place, built up the fences. I hauled him two or three truck loads of barbed wire and woven wire.
* * *
"Q. What buildings did he put on the place, if any? A. Good buildings; concrete foundation for a barn, 32 × 56; cow barn, silo and such, and he built a home; I don't know what he done but he done the biggest part of the labor. Then he built a granary, corn crib and hog house; big barn, eight or ten stalls and walk way and hay loft, and a long crib to unload his corn in."
The father stayed with John on the Wayne county farm much of the time making that his home. Charles Maglio testified as follows:
"Q. Relate what he would say on those occasions? A. Well, Mr. Peterein would always refer to the place, about John clearing it and what all he done to it, and about making a home for himself. He said he made that proposition when he come down, if he would clear the place and improve it, fix the house that was there and fence it, and I believe John did quite a little concrete work — he said. `If you improve it it's going to be your place.' Then in later years, when I was going down there every week, Mr. Peterein was telling me about the Government going to take over the place, and asked me if I would make it a point to drive him to look for a place. I told him yes; and Mr. Peterein and John and myself went to look for a place, and every place he would look at, he would say, `Well, whatever John gets, it is his place — whatever he wants, it's his.' There was one place in particular Mr. Peterein liked and John didn't like it. He told him, `Well, it's your farm, if you don't like it get something you do like. I can't tell you what to buy.'"
[636] A number of other witnesses testified with reference to statements made by the testator to the effect that the Wayne county farm belonged to John. No evidence to the contrary was introduced. The evidence of the last witness above quoted brings us down to the time the United States Government took steps to acquire title to the Wayne county farm. The evidence was, that during the time after the testator had signed an agreement to sell the farm and before the deed was made he and John, Jr., made a number of trips looking for a farm; that the land purchased in Cape Girardeau county, the subject of this litigation, was selected by John, Jr. The evidence disclosed that a deed of trust was placed on the Wayne county land and given to the owner of the Cape Girardeau county land as security for the purchase price. It was further shown by the evidence that when the government paid for the land a check was made to Mrs. Myrtle Webb, the seller, for $7,323.00, being the balance due on the Cape Girardeau land. The sum of $119.88 was retained by the government to pay taxes. The balance of the money was paid to the testator. He paid and discharged a deed of trust and note of about $1400.00 held by the Federal Land Bank against the Cape Girardeau land and retained the balance. A number of witnesses testified that the testator said he was buying the Cape Girardeau land for John. The seller, Mrs. Webb, testified on this point as follows:
"Q. Did you have a conversation with John Peterein. Sr., about the time you closed the transaction and got the money? A. Yes.
"Q. Tell the court where it was and what was said? A. In the court house at Greenville. When we got our business attended to grandpa turned to me and said, `Well, Mrs. Webb, I'll tell you good-bye, I may never see you again.' I said, `O, I guess we will meet again, I'll be going back to the farm once in awhile, you are going to live there, aren't you?' He said, `No, I'm not going to live there; I bought that for John and Mayme, and they are going to live there.'
"Q. Who is Mayme? A. John's wife."
Appellant offered no evidence contradicting the above testimony. Evidence was offered with reference to a number of transactions that had no direct bearing on the question in controversy. We will not summarize this. The vital question is, did John, Jr., go to the Wayne county farm with the understanding that if he lived there and improved the place it would be his land? That question must be answered in the affirmative. The next question is, did John, Jr., perform his contract? The answer to that question must also be in the affirmative. That being the case he was entitled to have that farm as a matter of right and his right was one that could be enforced in an equitable action. The second transaction, buying the Cape Girardeau farm with the funds derived from the sale of the Wayne county farm, was done with a mutual understanding between the contracting parties, the father and the son, to substitute the newly purchased land for the old. Appellant in his brief says:
"The evidence utterly fails to go to that length which a court of conscience and equity demands before divesting titles and before defeating the bounden will of John Peterein, Sr."
Suppose we could ask John Peterein, Sr., to solve that question, is there any doubt as to what his answer would be? We think not. We are also of the opinion that a court of equity could have entered no other decree than was entered in this case. Appellant in her brief attacked the evidence of David by saying it was given for ulterior purposes; that she had filed exceptions, to his final settlement and that her brother John would testify for David in that case because David testified for him in this case. If David's evidence were omitted entirely it would not defeat John, Jr's., claim, as it still would be supported by an abundance of evidence. The law applicable to this case is as contended for by appellant. In fact it is not in dispute. The vital question in dispute is whether the evidence was sufficient to authorize the decree entered. Appellant thinks it is insufficient. As we view the situation we think it ample to sustain the finding of the trial court. Not only that, but we have reached the same conclusion.
The judgment is therefore affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.