Best v. Gralapp

Pound, C.

This is a suit to quiet title. The plaintiff, who is in possession of the premises in controversy, alleges that on the 22d day of May, 1899, and, for many years prior thereto, his father, now deceased, was the owner and in possession of the property; that his father was an old man at that time; that all his children were of full age and living out of the state, and that his wife was divorced; that under these circumstances his father, being without suitable care, attention and protection, agreed with the plaintiff, who was then- in business in the state, of Kansas, that if the plaintiff would abandon his business there and return with his family to the property in controversy, take charge thereof and of thé plaintiff and provide him with suitable home and attention until his death, the plaintiff should receive at his death the land in question, and other property not material to this controversy. He further alleges that in pursuance of and part performance of said agreement, and in reliance thereon, he closed out his business in Kansas, sold bis property in that state except such as be could use at bis father’s home in Nebraska, and removed to the property, upon which he and his family have resided ever since; that he performed in all respects everything on his part to be done and performed under said agreement; and that he assumed and paid all the funeral expenses and expenses of the last illness of his father and all other claims that might be charged as debts against his father’s estate, including certain expenses of removing a cloud upon his father’s title to the property. He also alleges that his father died on the Í4th day of March, 1901, and that five of the children and heirs at law of his father have since that time conveyed and quitclaimed to him all title or interest which they might have in the property. Three children and the heirs of a fourth, deceased, who have not executed such conveyances are made defendants, and the petition prays that the title to the property may be quieted in the plaintiff as against them. The trial court found generally for the plaintiff and against the defendants and rendered a decree as prayed for.

We think the findings and decree are right and should be affirmed. An agreement to devise land, upon sufficient consideration, may be enforced specifically in. a proper case. Howe v. Watson, 179 Mass. 30, 60 N. E. 415; Bird v. Jacobus, 113 Ia. 194, 84 N. W. 1062; Whiton v. Whiton, 179 Ill. 32, 53 N. E. 722. It is sufficient if the agreement is that the promisee shall receive the property, or that it shall be left him at the decease of the promisor. There need not he an express promise, in so many words, to make a will. Kofka v. Rosicky, 41 Neb. 328. Equity will impress a trust upon the property in such cases, which will follow it into the hands of personal representatives or devisees of the promisor. Price v. Price, 111 Ky. 771; Howe v. Watson, supra; Duvale v. Duvale, 54 N. J. Eq. 581, 56 N. J. Eq. 375; Bruce v. Moon, 57 S. Car. 60, 35 S. E. 415; Fogle v. St. Michael P. E. Church, 48 S. Car. 86, 26 S. E. 99; Smith v. Pierce, 65 Vt. 200, 25 Atl. 1092; Burdine v. Burdine, 98 Va. 515, 36 S. E. 992.

On behalf of appellants the principal contention seems to be that the agreement in question, being testamentary-in character, was ambulatory and revocable during the life of the testator. But after performance on the part of the plaintiff oj substantially everything to be done on his part, this can not be true. To hold the agreement revocable under such circumstances would be to permit a fraud which a court of equity could not sanction. This very question was decided in Bruce v. Moon, supra. It is also insisted that the agreement was within the statute of frauds.' While there is some conflict of authority on this point, the authorities recognized and followed in this-, state hold that part performance, of such a character that, the court can not restore the promisee to the situation in which he was when the agreement was made or compensate him in damages, is sufficient to take the case out of the statute of frauds. Kofka v. Rosicky, 41 Neb. 328; Rhodes v. Rhodes, 3 Sandf. Ch. (N. Y.) 279; Shahan v. Swan, 48 Ohio St. 25, 26 N. E. 222; Sutton v. Hayden, 62 Mo. 101. This doctrine has the support of many recent decisions. Winne v. Winne, 166 N. Y. 263, 59 N. E. 832; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4; Owens v. McNally, 113 Cal. 144, 45 Pac. 710; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173. Where a man of middle age and the head of a family closes out his business, disposes of his property, presumably at a sacrifice, as is inevitable in such cases, and removes to another state for the purpose of taking charge of the property and person of an aged parent, the entire course of his life is so far changed that it would be impossible to compensate him adequately in damages or to restore him, after a lapse of some years, to his original position. To permit the statute of frauds to be asserted in such a case is to work a fraud upon the promisee. In the brief on behalf of appellants, some claim is made with respect to the statute of homesteads. We do not think that statute involved in any way. It appears that all the children of the deceased had come of age and left the state long prior to the agreement in question. His wife was long since divorced and, except as against the claims of creditors with respect to debts incurred during the continuance of the marriage relation, no homestead rights attached to the land. Several of the questions involved in this case were before the court in Teske v. Dittberner, 65 Neb. 167. But as a rehearing is pending, chiefly, however, upon question as to the effect of the homestead statute upon the circumstances of that case, we have preferred to treat the questions at issue independently.

1. Quieting Title: Decree: Evidence. Evidence examined, and found sufficient to sustain the decree entered in the trial court quieting title to the real estate in controversy in the plaintiff, appellee in this court.

2. Probate Court: Jurisdiction. A probate court is without jurisdiction to try and determine title to real estate.

3. Will: Probate: Collateral Attack. A suit in the district court to enforce the specific performance of a parol agreement to devise real property and to quiet title in the plaintiff, as against those claiming under a will duly allowed and admitted to probate in the county court is not a collateral attach on the judgment admitting such will to probate.

4. Affirmed. The former opinion and the judgment of affirmance in accordance therewith, adhered to.

It is recommended that the decree be affirmed.

Duffie and Kirkpatrick, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.