Lawson v. Mullinix

Boyd, J., delivered the opinion of the Court. The appellee filed a bill for specific performance against the appellant and other heirs of Mareen Duvall. The bill was dismissed as to all the defendants except the appellant, and a decree was passed requiring her to convey to the appellee the property mentioned in the proceedings, upon the payment by him of the sum of $3,815, less his costs. On the 22nd day of September, 1900, Mareen Duvall entered into an agreement with the appellee to sell him Us farm known as “Duvall’s Range,” for the sum of $3,825, and the appellee paid him ten dollars thereon.

No further payments were made prior to the death of Mr. Duvall, which occurred on July 2nd, 1903. On June 1st, 1903, Mr. Duvall conveyed the farm to the appellant, his daughter—the consideration named in the deed being “the sum of five dollars arid the love and affection I have for my daughter.” The appellant for her defenses relied on the five following grounds: 1st. That she possessed an equitable right to the property superior to that of the appellee. 2nd. That she possessed an equity ¹⁵⁹ equal to that of the appellee and in addition thereto had the legal title. 3rd.

That the appellee’s contract with Mareen Duvall was not such as entitled him to specific performance. 4th. That this contract upon which the appellee relies is unilateral, and 5th. That the appellee was guilty of laches. The theory of the appellant is that if it be conceded that the agreement between the appellee and Mr. Duvall was a valid contract, she had a prior equity in the property by reason of a promise made by her father to give her the farm if she would live with him and keep house for him during his life.

The testimony shows that she did so and she relies on the maxim that “between equities, priority of time will prevail.” We will consider together the first two defenses relied on, as stated above. First. The appellant was living in Frederick County in February, 1897, when she moved to her father’s place in Montgomery County, in consideration, as she claims, that he would give her the farm. She lived with her father and kept house for him from that time until his death.

It will be well to at once ascertain the circumstances under which she went there, as disclosed by the record. She testified that she received two letters from her father, both of which she destroyed, and gave as a reason for not having them that she never kept letters. In the first, her father wrote that he thought of selling the place, but if she would come there that he would not sell it, and she said of the second letter, “then he wrote me word that still if I would come and live with him that he would not sell the place and that I could have it.” She also said that he went twice to see her and “he furthermore stated after I got there that I should have the place.” Mrs. Darby, a sister of the appellant, testified that she had a conversation with her father and “He requested me to write a letter to her for him telling her to come down to keep house for him, that if she didn’t, he would have to sell the place. If she would come and keep house, he would leave her the place for a home for her.” She said her daughter wrote the letter at her dictation and she again spoke of a conversation with her father in which ¹⁶⁰ ‘fhe said he wanted her to come and keep house for him and that he would leave her the place when he was gone.” The daughter testified' that she wrote the letters and said of the second that ‘‘grandpa told me to write to Aunt Sally, if she would come down and live with him he wouldn’t sell the place and that she could have it at his death.” That is all the testimony on the subject, excepting some statements made by Mr. Duvall after the agreement with the appellee was made, which we will refer to later.' There would seem to be no doubt that the appellant would, under that evidence, have had no standing in a Court of equity to compel her father to convey thé property to her in his lifetime.

While in her-own testimony she did not in so many words say that her right to the property was t© begin from the time of his death, that could be inferred as she was not, according to her-own statement, entitled to it during his life. But Mrs-. Darby and her daughter-removed any'possible doubt on that subject, as will be seen by what we have quoted above. As Mr. Duvall had-his whole life in which to perform, there could be no breach until after his death. 26 Am. & Eng.

Ency. of Law, 93; Manning v. Pippen, 86 Ala. 357 ; Flowers v. Cruik shank, 77 Iowa, 110 . If it be conceded that Mrs. Lawson would have been entitled to a decree for specific performance against the other heirs of her father, if she had not received the deed, is she in a position to deny the right of .the appellee to such relief? Is her equity superior or equal-to that of the appellee? There- is nothing in the record to show that the appellee either had notice of the appellant’s claim, when he entered into the agreement with Mr. Duvall, or that the appellant had such possession of the property as would put him on inquiry or cause him to suspect that she had any interest in the property.

On the contrary, the evidence shows that after Mrs. Lawson went to live with her father, he continued his control over the property, rented parts of it to tenants, collected his share of the rents, and did nothing that would suggest to the appellee that Mrs. Lawson or any one other than himself had any interest in the property or that had he made any promise to leave it to Mrs. Lawson after his death. ¹⁶¹ In the latter part of May,, 1903, Mr. Duvall sent for the appellee and clearly and fully recognized his agreement to sell the property to him. The object in sending for the appellee was to get him to surrender his claim to the farm so he could give it to Mrs. Lawson. There can be no doubt about that from the evidence in the record. Mrs. Lawson testified that upon that occasion “father told Mr. Mullinix that the place was for me.

That I wanted it for a home. Mr. Mullinix didn’t make him any answer to that, and he repeated it and-Mr. Mullinix said that he bought the place. Father told him that he wanted me to have it. * * * I offered him back his ten dollars. He wouldn’t say that he would accept of it.”' Miss Darby, a granddaughter of Mr. Duvall, testified that he sent for Mr. Mullinix, that “grandpa told him Aunt Sally was to have the place, and asked him what he had to say * * * He didn’t say anything * * * .

My grandfather said, Mr. Mullinix, I sent for you to give you the ten dollars. Sally is to have the place.” On cross-examination she said “Grandpa said Mr. Mullinix had given him ten dollars as part of the agreement for buying the place. He was to give him twenty-five dollars, and only gave him ten.” So without quoting from the testimony offered by the appellee, which-thoroughly sustains the fact that Mr. Duvall did on that occasion recognize his agreement and wanted the appellee to accept the ten dollars and give him up his claim to the property, the evidence of the appellant shows that such was the case and that she at least at that time knew that Mr. Mullinix had some kind of an interest in the property. But notwithstanding that, a few days afterwards (June 1st) she accepted the deed from her father, which recited the consideration to be “the sum of five dollars and the love and affection I have for my daughter”—not a word in it suggesting that there was-such consideration as she now relies on.

Although the learned solicitors for the appellant concede that she cannot sustain her defense under that deed alone—the consideration being of a different kind—we find in the record in her examination in chief this testimony: “Q. You are still in posses ¹⁶² sion of the place, I believe? A. Yes sir. Q. And claim it under the deed that has been offered in evidence? A. Yes sir. ” The testimony we have thus far referred to (most of which was offered by the appellant) is such as should cause a Court of equity to hesitate to grant the appellant any relief based on it, even if the appellee had not acquired any right to the property.

In the first place, what the contract was between her and her father, if we concede, there was one, is left in great doubt. In her answer she alleged that it was that the property was to be conveyed to her while the evidence of the witnesses produced by her to prove the contents of the two letters which she claims to have received from her father, was that he said “he would leave her the place for a home,” that “he would leave her the place when he was gone,” and that “she could have it at his death.” They were speaking of the alleged contents of letters written seven or eight years before their testimony was given and the appellant herself attached so little impprtance to them that she did not preserve them. It is manifest that those witnesses were to a great extent placing their own interpretation on the meaning of the letters. While it may be conceded that the appellant could not be expected to be well versed in business principles, no one can read this record without reaching the conclusion that she was duly watchful of her own interests.

But there can be no doubt that Mr. Duvall did not understand that he was under any legal obligations either to convey or to devise this farm to the appellant, for about three years after she moved to his place, he made the contract to sell it to the appellee. There is no suggestion in the record that he was of the character of man who would thus perpetrate a fraud on his daughter, and it may be added here that the position assumed by her in effect charges her father with fraud. If she is right, then his attempted sale to the appellee was a fraud, either on him or her, as he could not have honestly entered into this contract, if he had made an agreement with the appellant either to convey or devise the property to her, un ¹⁶³ less she consented to it. But the evidence shows that he continued to exercise control over the place and did everything that an owner of his age could do with his property.

The appellant admits that she had heard “from outsiders” that there was a contract in existence with the appellee, but there is no evidence that she ever complained of it to her father or told the appellee that she claimed any interest in the farm. The old gentleman told other people of his sale to Mr. Mullinix and, to say the least, it is peculiar that he did not tell his daughter who was living with him, and still more so that she did not speak to him about it when she heard of the contract with Mr. Mullinix. But there is a most significant fact in the record bearing on this subject. When Mr. Duvall sent for Mr. Mullinix a few weeks before his death to ask him to give up his claim to the farm, so he could give it to Mrs. Lawson, she did not suggest that she had any legal right to it—nor did the old gentleman.

Is it possible to believe that she would not have asserted her right then and there or that the old man, who was then on his death bed, would not have spoken of the agreement with her if they had made one? Is it not much more reasonable to assume that although he was under no legal obligations to convey the property to her, he had concluded to leave it to her— either by reason of her persuasion, or possibly because he felt that she should have it, as she had lived with him for six years. Although she was already well provided for, it is not altogether unnatural that he then felt like rewarding her for any services she had rendered him—especially if, as one of the witnesses testified, “he said he thought she would do right.” Another circumstance might be referred to in this connection. Mrs. Boyer, who was one of three heirs of Mr. Duvall—being the daughter of a deceased sister of the appellant—in her answer filed to this bill charged the appellant and Mr. and Mrs. Darby, with “conspiring and contriving together to cheat and defraud the defendant, Annie Boyer, out of every interest she might have in the estate of the said Mareen Duvall,” and alleged that the deed involved in this case was procured ¹⁶⁴ “by the undue influence and artifice practiced and exercised by them upon the said Mareen Duvall.” But notwithstanding that serious charge in the record, the appellant brought out the interest of Mrs. Boyer in the farm artd in all the estate of Mr. Duvall for which a deed was executed, reciting as the consideration the sum of ten dollars.

That deed was not executed until about the time the testimony was taken. If the appellant believed that she was entitled to the farm under an agreement made with her father six years before-his death, it does seem strange that she would have purchased this third interest—whether it was for the nominal consideration named in the deed or more—when such a charge remained unexplained on record against her. So without dwelling upon the fact that when Mrs. Lawson went to live with her father she was not making any great sacrifice (as she was then occupying a similar position at her brother-in-law’s house without receiving any compensation other than her board) but was only doing what any daughter, situated as she was, should gladly do for an aged father, it seems to us that the appellant has failed to establish such an equity in this, property as should deprive the appellee of relief. But beyond all this,-the appellant after failing to induce Mr. Mullinix to surrender his interest in the property, accepted the deed from her father and in. her testimony said she claimed the property under that deed.

How can it now be claimed for her that the real consideration was the alleged -agreement made six years before her father’s death?. Of course after the receipt of'that deed she could not have had specific performance of her alleged contract, either against her father in his lifetime, or against the heirs after his death, as the deed itself would have been a complete answer to such a proceeding. But when she accepted the deed, which recites a consideration so clearly repugnant to that now attempted to be- set up, is a Court of equity to say that although she is contradicted by the deed, it will permit her to go behind it and set up another and altogether different consideration in order that the contract made by her father with the appellee may be defeated? Not to ¹⁶⁵ speak of the objection to that under well established legal principles, would it be just to the memory of Mareen Duvall?

We have already seen the position that the appellant’s claim places her father in, and as he is now in his grave, is she to be permitted to deny that what her father said in the deed accepted by her was true—that he conveyed the farm to her in consideration of the sum of five dollars and love and affection— not because he was under any legal obligation to do so by reason