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
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
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
It is recommended that the decree be affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.