I regret that I cannot concur in the majority opinion, regret that a conclusion has been reached from which I feel it my duty to dissent.
In my opinion and judgment, formed from a reading of the record and the briefs and authorities cited, as well as many other authorities not cited in the briefs, it is my clear conviction that the record has been misinterpreted and misconstrued, and that the law has been erroneously applied.
This was not a suit to enforce specific performance of a written contract, nor a contract which had to be reduced to writing to become effective, which appears to be the theory upon which the majority opinion is based, but was a suit to enforce a partially executed oral agreement.
It appears from plaintiff's petition that the facts and circumstances which brought about the suit were: That John S. Bilby, the father of plaintiff and defendants, was possessed of approximately $5,000,000 worth of real estate, situated in different states, some 12,000 acres of which were situated in Oklahoma, some 20,000 acres situated in the state of Missouri, and some 132,000 situated in the state of Texas, besides real estate holdings in other states. That, being 82 years of age, and realizing the uncertainties of life, he issued a call to all of his children to meet, in order that he could make some disposition of his vast estates. Defendants in error attended the meeting, but plaintiff, for some reason being unavoidably prevented from going, did not attend.
It should be borne in mind in these preliminary statements that the plaintiff was not overlooked by his father, nor intended to be ignored by his father, but was invited the same as the other children, but the father, realizing his age and the possibility of death, and feeling assured that the other brothers and sister would do the right thing by the absent brother, deeded them the lands that he had. For the purpose of this suit it is immaterial what land was deeded to each or either of his children. They were all grown and married and had families. He deeded all the property which he possessed to the other children. After his death, the plaintiff acting either upon information which he had received or upon the theory that his father had deeded this property to the other children, in trust to be kept and equally divided after their father's death, such property having been conveyed to the other children without any consideration passing to their father, he asked and insisted upon a settlement and division of the property pursuant to the wishes of their deceased father. And upon their refusal to do so, he brought suit in the United States District Court of Missouri to have the deed to the land situated in Missouri declared a trust deed for the benefit of all the children. A like suit was brought *Page 32 for a like purpose in the district court of Oklahoma, for some 12,000 acres of land situated in Oklahoma, which suit was later transferred to the United States District Court for the Eastern District of Oklahoma, and had prepared to institute suits to have the deed to the 132,000 acres of land situated in the state of Texas declared to be a trust deed, and had prepared also to bring suits for other property situated in other states. He had also filed proceedings in the county court of Rogers county, Okla., to have his brother, Nicholas Bilby, removed as administrator of his father's estate; that is, the estate which his father had accumulated after he had made the aforesaid deeds and before his death and had died without making any disposition of same. The suit which had been transferred to the United States District Court of the Eastern District of Oklahoma went to trial, and the court took the same under advisement before rendering judgment. After the conclusion of the trial and before the court rendered its judgment, the plaintiff and defendants, his other two brothers and his sister, entered into an oral agreement, by which the defendants agreed to convey their interest in the 6,000 acres of land which their father had accumulated, after making the aforesaid deeds, and before his death, to their sister, Ellen Smith, in trust for plaintiff, to be held in trust for a period of five years, after which, if plaintiff made good (what is meant by good is explained in the testimony), the deed was to become absolute, conveying fee title to him; in consideration of which deed he was to do the following things: That as to the case pending in the federal court of the Eastern District of Oklahoma, plaintiff should waive his right of appeal in the event judgment be rendered against him. That the plaintiff should file a dismissal of the case pending in the Western District of Missouri. The plaintiff should refrain from bringing suit in the state of Texas to recover a one-fourth interest in that land. That he should dismiss his motion or appeal seeking to remove Nicholas V. Bilby as administrator of the estate. That there was a suit pending in the state of Kansas against plaintiff, seeking to foreclose a mortgage on a large tract of land, and the plaintiff should settle that litigation so there would be no deficiency judgment against plaintiff. Plaintiff should secure releases from his attorneys releasing him from all liens or fees. The plaintiff was then to assist Nicholas Bilby in closing up the administration of the estate of John S. Bilby.
The foregoing is, in substance, the allegations of the petition. In support of such allegations, the plaintiff, on pages 296, 297, and 298, testified as follows:
"The conclusion was, we came to this agreement: They was to turn to me land in Rogers county, excepting the lands in sections 32 and 33, township 20, range 16. They was to turn the Arkansas property to me under this condition. Russ asked no consideration. Nick asked the deeding by me of my interest in the New Jersey property to him for his interest in the Arkansas property. I owed my sister a ten-thousand dollar note and I was to dispose of the land as best I could and apply her one-fourth interest to the liquidation of that note. If there wasn't enough to pay the note, she was to cancel the note. I was to dismiss my suits and get rid of the Kansas matter.
"The property that was to be turned to me, was not to be turned absolutely at that time. The deeds were to be made, they were to furnish stock to stock it and implements sufficient and sufficient money to farm it the first year. It was to be placed in my sister's hands as trustee, and I was to report to her and make good for five years. And if it was worth as much at the end of five years as it was when I took it, it was to be mine absolutely."
Plaintiff also alleged and testified on the stand that he had done all things required of him to be done under their agreement; that he had dismissed his suit in Missouri, had waived his right of appeal from the judgment of the United States District Court of the Eastern District of Oklahoma, had dismissed his suit to have his brother, Nicholas, removed as administrator, and abandoned his suits in the state of Texas and other states, had cleared up the litigation against him in the state of Kansas, and procured releases of all attorneys' liens.
He introduced in evidence a letter, copy of which he addressed to each of his brothers and his sister, as follows:
"The enclosed shows to you that I have cleaned the slate and released myself of attorney fees. You have said what you would do under these conditions. Now will you or won't you? Kindly let me know at once, as it is spring, and I must get out and do something else if you don't."
He also introduced replies to such letter, from his brother Nicholas, as follows:
"I have your letter of the 9th inst enclosing dismissals, it seems all right as far as I know except the one on the Allen land in section 4-16-15, which I understand Mr. Walker of Tulsa is handling. Please see him and get this one dismissed and I think we will all have a little peace and rest. I go to Texas tonight, but will be back in a few days and will see you.
"Your brother Nick." *Page 33
And from his brother, Russell I. Bilby, as follows:
"Dear Brother:
"Your letter to hand and contents noted. Will say that I am ready as I have been at all times to turn the Graham ranch to you, at least my interest in it I think Nick and Nell are in the same mind.
"If you will get down along side of Nick help clear up the administration you can get to doing business just that much quicker. You know as much about the condition as I do, probably more, if there is any way that it can be turned to you now I am ready to do so.
"The thing for you to do as I see it is to get busy and help clean it up. Will be down soon as can get away from here.
"Yrs, R.I. Bilby."
On page 547 of the record, the defendant Nicholas Bilby, after detailing the things which the plaintiff Ed was to do, testified, and in answer to the question:
"Q. What were you parties to do in case he settled with his lawyers and in case he dismissed all litigation and settled the Kansas matter? A. We were to give him possession of the Graham ranch for a period of five years. We were to give him possession, use and benefit of the Graham ranch, the Rogers county property, that is, our interest, for five years. At the end of the five years, if he made good, he was to have the title to our share. Q. What was to be considered making good? A. Russell said, if you have as many dollars in property and money as when you start, I will say that is making good. I think we all acquiesced in that. Q. Were you not also to furnish him sufficient stock to start farming the place? A. A sufficient amount of hogs and stock and cattle. I don't think he contemplated farming it much himself, but to have it farmed by tenants; he was to have some hogs and a few cattle and some money for running expenses, and was to make his report, I think monthly to the trustee." (That is, Mrs. Smith, the sister.)
Russell I. Bilby testified on pages 489 and 490 of the record, as follows:
"Q. What was your and Nick's proposition by which this property was to be in Mrs. Smith as trustee and held five years at that time become his? What was the conditions attached to that? What was he to do?
"A. Mr. Ford advised us that his attorney's fees, whatever they were, would have to be cleared away before the completion of the scheme that we had worked on; that, and he was to — Ed was to dismiss all the suits, and he was to endeavor to get his Kansas deal straightened out so there would be no deficiency judgment there that would come in against him afterwards. He was to go on this property in person and bring his wife and family there, and he was to have the land in Rogers county placed in trust with Mrs. Smith as trustee, for five years. At the end of the five years, if he made good, we was to deed him our interest in the land. He raised the question what would be making good, and I said, if at the end of the five years he had as many dollars or as much money as when he commenced, I would say he made good. That is the substance of what was done."
Mrs. Smith, the sister, on page 561 of the record, admitted that she had received the letter from Ed and copies of the letters, replies, from Nick and Russell; that she further understood the agreement; that when Ed had complied with all the things, then the land in Rogers county was to be conveyed to Ed for five years under her trusteeship; at the expiration of five years, if he made good, she and her brothers would convey their interest in said land to Ed.
None of the witnesses testified that at the time the oral agreement was reached in the Turner Hotel, in the city of Muskogee, such agreement was not to become binding until reduced to writing, and the subsequent acts of the parties show conclusively that the carrying out of the terms of the agreement was not dependent upon its being reduced to writing; they were brothers and sister, they had entered into an oral agreement, through which he was to have a portion of his father's estate; he relied on their promise, made in the oral agreement, and they acquiesced and he proceeded to carry out the terms of same on his part, and did carry out every condition on his part which he could possibly carry out until they performed some of the conditions of their part, by putting him in possession of the land. But after he had settled his litigation in Kansas, at a forfeiture of his equities in the land involved, had waived his right to appeal from the judgment of the United States District Court at Muskogee, had dismissed his suit in the United States District Court in the state of Missouri, had abandoned his intention to bring suit in the state of Texas, and had placed himself in a position where it would be impossible to restore him to his original rights, — after he had done all these things, pursuant to the oral agreement, then for the first time the defendants began to justify their failure to perform the conditions on their part by saying there was no contract and was not to be any until it was reduced to writing. The record discloses conclusively that the reducing of the contract to writing was never made a condition of performance *Page 34 on their part until after he had sacrificed and relinquished all of his rights in carrying out the conditions of the oral agreement. A clearer case of part performance of an oral agreement to convey real estate could not be made than this record presents. This was a suit to enforce performance of a partially executed oral agreement. No one can read the record and fairly say that no oral agreement was reached. No one can read the record and not say that, acting upon the oral agreement, the plaintiff had surrendered every right which he had at the time the oral agreement was entered into.
A great deal of ado has been made in the briefs of defendants and in the majority opinion about his not securing a release from one certain attorney, Watts, but, as we view the record, this was none of defendants' business. It was an arbitrary condition imposed upon the plaintiff after he had sacrificed all of his rights, and, as a matter of fact, he had procured releases from all his attorneys before this suit was filed, but defendants claim, or, at least, Russell Bilby claimed, that this was done after the matter "all blowed up." But the record discloses that the matter had never been declared to be "blowed up" until after plaintiff, Ed Bilby, had sacrificed all his legal rights in pursuance of the oral agreement. In my judgment, the contention as to the lien, and the contention as to his failure to obtain releases from the attorney, Watts, within a certain time is all a dodge and a subterfuge, and was never resorted to until after the plaintiff had sacrificed and surrendered all his legal rights. This contention is received with little grace. It means that defendants had so much love for their brother, and felt so much interest in his welfare, that they would rather deprive him of all interest in his father's $5,000,000 estate, and kick him out penniless into the world, than bear the thought of a few thousand dollars' attorney's lien hanging over him.
The circumstances of this case conclusively take it out of the statute of frauds. See Halsell v. Renfrow, 14 Okla. 674,78 P. 118; Harris v. Arthur, 36 Okla. 33, 127 P. 695; McCoy v. McCoy, 30 Okla. 379, 121 P. 176; Chowning v. Graham,74 Okla. 232, 178 P. 676; Johnston v. Baldock, 83 Okla. 285,201 P. 654; Cannon v. Unruh, 84 Okla. 36, 202 P. 182; Riggles v. Erney, 154 U.S. 244, 38 L.Ed. 976.
In Riggles v. Erney, supra, the Supreme Court of the United States said:
"Indeed, the rule is too well settled to require further citation of authorities that, if the parol agreement be clearly and satisfactorily proven, and the plaintiff, relying upon such agreement and the promise of defendant to perform his part, has done acts in part performance of such agreement, to the knowledge of the defendant, acts which have so altered the relations of the parties as to prevent their restoration to their former condition, it would be a virtual fraud to allow the defendant to interpose the statute as a defense and thus to secure to himself the benefit of what has been done in part performance."
All of the above cited cases are to the same effect. In the case at bar, the oral agreement was positively testified to by the plaintiff and clearly admitted by each and all of the defendants. The record conclusively shows, and it is nowhere denied, that the part performance on the part of the plaintiff in pursuance of his part of the oral agreement was done with the full knowledge of defendants, with the acknowledgment of written notice that he had performed his part and had thereby placed himself in a position where it would be impossible to restore him to his original rights.
Hence, in view of the record and the law applicable to the record, I dissent from the majority opinion.