Summary
In Carter v. Witherspoon, 156 Miss. 597, 126 So. 388 (1930), Witherspoon filed suit to recover for services rendered Carter upon an oral agreement wherein Carter agreed to bequeath and devise property to Witherspoon in consideration of the care and support rendered to Carter during her lifetime.
Summary of this case from Dobbs v. BowlingOpinion
No. 28447.
February 24, 1930.
1. WORK AND LABOR. If oral promise to devise land was not binding, promisee could recover value of services performed and money advanced under agreement ( Hemingway's Code 1927, section 2637).
If oral promise to devise land was void under statute of frauds, Code 1906, section 3099 (Hemingway's Code 1927, section 2637), nevertheless plaintiff, promisee, could recover value of his services performed under agreement and also the money advanced by him to defendant under agreement.
2. WILLS. Where promisor disavows agreement to devise property, there is anticipatory breach, and action for damages then accrues.
Where promisor disavows agreement to devise or bequeath property and states his intention not to comply therewith, there is an anticipatory breach of promise, and an action for damages therefor then accrues.
3. LIMITATION OF ACTIONS. Statute of limitations could not begin to run until contract to devise property was broken.
Statute of limitations could not begin to run until contract to devise property was broken by promisor.
4. SUBROGATION. Mere discharge by one of lien on another's property does not entitle him to right of subrogation thereto.
Mere discharge by one of lien on property of another does not entitle him to right of subrogation thereto.
5. DAMAGES. If complainant incurred obligation to pay for material used on defendant's premises, he was entitled to recover therefor, though he had not actually paid for it.
If complainant, to whom defendant agreed to devise property, if complainant would live with, and provide for support of, defendant, incurred obligation to pay for building material used on defendant's premises, he was entitled to recover therefor, though he had not actually paid for it.
6. LIENS. Where complainant's cause of action for value of services rendered and for money advanced under agreement for devise of property was one for damages cognizable in action at law, he had no right to lien on defendant's property.
Where complainant's cause of action for value of services rendered under agreement whereby defendant agreed to devise property to complainant and for money advanced to defendant under agreement, except in so far as it invoked doctrine of subrogation, was simply one for damages cognizable in action at law, complainant had no right to lien on defendant's property.
7. EQUITY. Demurrer going only to portion of bill presented no ground for dismissal of bill as an entirety.
Where grounds of demurrer challenging complainant's right to subrogation to alleged purchase-money liens and to lien on defendant's real property, for any damages complainant might recover, went only to portion of bill, it presented no ground for dismissal of bill as an entirety.
8. APPEAL AN ERROR. That cause of action set forth in bill is legal and not equitable presents no ground for reversing decree ( Constitution 1890, section 147).
That cause of action set forth in bill was legal and not equitable presented no ground for reversing decree of lower court, under Constitution 1890, section 147.
APPEAL from chancery court of Hinds county, First district. HON. V.J. STRICKER, Chancellor.
Fulton Thompson and R.H. J.H. Thompson, all of Jackson, for appellant.
A cause of action does not arise from a failure to perform a promise to bequeath or devise property against the party so promising and the statute of limitation does not run in such case until after death of the promisor.
Barry v. Ellis, 145 Miss. 652, 110 So. 211; Anding v. Davis, 38 Miss. 574.
All declarations or creations of trusts or confidence of or in land shall be made and manifested by writing, signed by the party who declares or creates such trust, or by his last will in writing or else they shall be utterly void.
Statute of Frauds, Code 1906, secs. 5780-4779.
That an oral agreement to devise land is within the statute of frauds is well settled by authority.
Note 5, Am. Eng. Annotated cases, page 495. Note, American Annotated Cases, 1915, at pages 463, 464; 8 Ann. Cases Note, p. 114; Wallace v. Long, 105 Ind. 522; 55 Am. Rep. 222; Wood v. Evans, 113 Ill. 186; 55 Am. Rep. 409.
A mere promise to give money by way of legacy cannot be sustained because of services to be rendered the promisor by the promisee, because the services, whatever they are, were rendered merely on the expectation of a legacy and the promisee took his chances of its being made. In re Missler's Estate, 136 Pa. St. 239; 20 Alt. 790; In re Weaver's Estate (1897), 128 Pa. 349; 38 Alt. 12; Bell v. Oates, 97 Miss. 790, 53 So. 491.
A chancery court of this state should not adjudicate the validity of a mortgage on land (or any other lien) in another state, even when it has jurisdiction of the parties.
Atkinson v. Varnado, 91 Miss. 825.
If a cause of action has accrued the statute of limitations has begun to run. The statute of limitations may be presented as a defense in the chancery court by demurrer to the bill of complaint.
McNair v. Stanton, 75 Miss. 298. W.H. Cox, of Jackson, for appellee.
The demurrer before the court is a general demurrer wherein a special demurrer was incorporated therein and is not permissible pleading even in chancery courts.
Washington v. Soria, 73 Miss. 665, 19 So. 485; Griffith, Miss. Chan. Practice, secs. 290, 294 and notes thereto.
Where an irreparable injury would be suffered by appellee if compelled to resort to a Court of Law, this is the very office of a court of chancery and states a substantial ground of equity intervention.
Pitts v. Carothers, 152 Miss. 694, 120 So. 830.
If oral promise to devise land was not binding, promisee could recover value of services performed, and money advanced under agreement.
Hemingway's Code 1927, section 2637; Ellis v. Berry, 145 Miss. 652, 110 So. 211.
Where a promisor disavows agreement to devise property, there is anticipating breach and action for damages then accrues.
Bell v. Oates, 97 Miss. 790; 17 R.C.L., p. 799; Tipple v. Tipple, 177 N.Y.S. 813; Henry v. Rowell, 64 N.Y.S. Supp. 488; McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244; Messier v. Messier, 34 R.I. 233, 82 A. 996; Heery v. Reed (Kan.), 102 P. 846; Bonesteel v. Van Ellen, 20 Hun (N.Y.) 468; case notes 8 Annotated Cases, page 114; Ga Nun v. Palmer, 202 N.Y. 483, 96 N.E. 99, 36 L.R.A. (N.S.) 922; Hursey v. Surles, 91 S.C. 284, 74 S.E. 618; Quackenbush v. Earle, 5 Barb. (N.Y.) 469; 37 C.J., pp. 820-821, sec. 172; 6 R.C.L., p. 1028; Majority Rule, sec. 385; 17 R.C.L., p. 759, sec. 125; 25 Cyc, page 1070, sub-section (c); Gray v. Witherup, 11 Ohio App. 288; Wold v. Wold (Minn.), 165 N.W. 229; 25 R.C.L., p. 730, sec. 378; Harris v. Townsend, 101 Miss. 590, 58 So. 529; Henry v. Rowell, 64 N.Y.S. 488.
The statute of frauds has no application to a suit of this nature.
This is an appeal to settle the principles of the case, and is from a decree overruling a demurrer to an original bill. The bill alleges, in substance, that the complainant, the appellee here, entered into an oral agreement with the defendant, by which the complainant agreed to live with, care for, and provide for the financial support of, the defendant as long as she lived; for which the defendant was to bequeath and devise to him all of her property, both real and personal; that the complainant complied with his agreement, lived with, cared for, and supported the defendant for a number of months, when she forced him to leave her home, and served notice on him that she did not intend to comply with her promise to devise and bequeath her property to him.
The bill then set forth the value of the services rendered to defendant by the complainant, the amount which he had spent in her support, and asked for a judgment therefor.
The bill also averred that a portion of the money advanced by the complainant was for the purpose of paying off purchase-money notes on a portion of the real property owned by the defendant, and prayed that the complainant be subrogated to this purchase-money lien, to the extent of the money advanced by him for the payment of these notes.
The bill also averred that the defendant owned certain real property, and prayed that the complainant be given a lien thereon for the damages to be recovered by him for the breach by the defendant of her agreement to devise the property to him.
The demurrer challenged the bill as a whole, and also in detail. Counsel for both of the parties seem to fear that the rule prohibiting the inclusion of a special demurrer in a general one may have been here violated, and request us to disregard that question, and decide the legal points presented — and this we will do.
The appellant's contentions are, first, an oral promise to devise land is void under the statute of frauds; second, the suit was prematurely brought; third, the bill discloses no right in the complainant to be subrogated to the alleged purchase-money lien; fourth, most of the items of the account filed as an exhibit to the bill are barred by the three-year statute of limitations, section 3099, Code of 1906, Hemingway's 1927 Code, section 2637; fifth, one of the items of expense alleged to have been incurred by the complainant for the defendant appears, from the statement thereof in the account filed as an exhibit to the bill, not to have been incurred; sixth, the complainant is not entitled to a lien on the defendant's land for any damages he may recover.
It will not be necessary for us to decide the first of these propositions. If the agreement is within the statute of fraud, and, therefore, not binding on the defendant, the complainant nevertheless has the right to recover the value of his services, and the money advanced by him to the defendant under the agreement. Ellis v. Berry, 145 Miss. 652, 110 So. 211; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; 27 C.J., 363.
If the agreement is not within the statute of frauds, then the complainant is entitled to recover, in event it has been broken by the defendant.
It is true that ordinarily an agreement to devise or bequeath property is not broken until the death of the promisor without the devise or bequest having been made. But such a contract in this respect is no different from any other, and, where the promisor disavows the agreement, and states his intention not to comply therewith, there is an anticipatory breach of the promise, and an action for damages therefor then accrues. 13 C.J. 651; 6 R.C.L. 1024.
No question as to the statute of limitations can here arise, for the reason that the complainant was without the right to sue, and the statute could not begin to run, until the contract was broken by the defendant.
The complainant's claim to the right of subrogation to a lien that formerly existed on a portion of the land in favor of another rests solely on the allegation that he "paid off the purchase-money notes thereon." This allegation does not disclose, except by implication, that these notes were secured by a lien; and the mere discharge by one of a lien on the property of another does not entitle him to the right of subrogation thereto.
One of the items of expense alleged to have been incurred by the appellee was the purchase by him of certain building material. This is set forth in the bill of particulars therefore, filed with the bill of complaint, as follows: "Jackson Lumber Company, Aug. 25 — 1927, 8 rolls red roof #3(400') 10# 8 Com nails (not yet paid) $34.50."
If the complainant incurred the obligation to pay for this material, he is entitled to recover therefor, though he had not actually paid for it. If it should appear that he had not, and would not, pay therefor, a different question would be presented.
Except in so far as it invokes the doctrine of subrogation, the complainant's cause of action is simply one for damages cognizable in an action at law, and he has no right to a lien, therefore, on the defendant's property.
The grounds of the demurrer which challenge the appellee's right to subrogation to the alleged purchase-money liens, and to a lien on the appellant's real property, for any damages he may here recover, go only to a portion of the bill, and therefore present no ground for the dismissal of the bill as an entirety.
That the cause of action set forth in the bill is legal and not equitable presents no ground for reversing the decree of the court below. Section 147 of the state Constitution.
Affirmed and remanded.