Goodin v. Cornelius

BEOWN, J. 1. The defendants assert that the complaint is insufficient in that it fails to aver an adequate consideration for the agreement alleged to have been made by plaintiffs with Benjamin Scholfield. Paragraph XVT of the complaint avers the principal consideration for the contract involved in this suit. This averment has already been set out in full herein, and it is unnecessary to repeat it. The allegation speaks for itself. It is enough. The objection to the complaint is without merit. Prom the face of the complaint, there appears an adequate consideration moving from the promisees to the promisor. The defendants also assert: “(1) There is no evidence in support of the alleged contract pleaded. “(2) There is no evidence in the record showing, or tending to establish, any contract capable of being specifically enforced.” The farm averred to have been the subject of the contract between the plaintiffs and Benjamin Scholfield is known as the Scholfield old home place. Previous to the making of the contract Scholfield had executed his will, wherein he had devised the old home place to a daughter, Eebecca Ellen Goodin, one of plaintiffs herein. After entering into the contract he executed a second will, again making the same devise to his daughter, Eebecca Ellen Goodin. About a year prior to his death, he executed a third will, and again devised the same tract of land to the daughter, less about eighteen acres cut from the east side thereof, which is the land involved in this controversy. — 430 — In addition to the old home farm, he owned other valuable lands, consisting of about 300 acres situate near Gaston. These lands he had made up his mind to devise to his daughters Euth A. Cornelius, Harriet Eva Yoder and Mary Jane Ward, giving to each 100 acres thereof. He had already given to defendant William Scholfield, a son, 187 acres of the home place and had rendered bim other assistance. Plaintiffs state that their sole inducement to leave Astoria and move upon the old home place, take possession, construct valuable improvements thereon, and by years of industry restore the old farm to its former fertility, was the contract made between them and their father, Benjamin Scholfield. For the purpose of establishing that contract, and the performance thereof, the following constitutes a portion of the evidence received during the trial of the cause in the court below: W. A. Goodin, one of the plaintiffs, testified: “A. He [Mr. Scholfield] asked me if I didn’t want to go on the place. He said he would will it to my wife; that the man that lived on it had given it up, that he had it rented and he asked to be released and he released him; and he said the place was badly run down and he wasn’t making anything out of it and it wasn’t hardly paying the taxes and he couldn’t hardly afford to keep it and handle it himself; that he couldn’t handle it himself, and he said he had an offer to buy it and he would sell it unless I would move on it. * * I said I would move on it if my wife would inherit it. I didn’t care to move on the place and fix it' up and then have it go back into the estate; that I was an old man myself. * * He said it was all fixed up; that that part of it was all fixed up and that he had it willed to my wife; and I asked bim if he would be willing to will it to me if I outlived her, and he said he would, and I moved on. — 431 — “Q. Is that all the conditions'? * * “A. He told me that the place was run down and he didn’t believe I could make a living on it and he would help me, and he expected me to pay the taxes and a hundred dollars a year. He said that Mr. "Ward (another son-in-law) paid two hundred dollars a year for the place he had up there, and he wanted me to pay a hundred dollars a year. * * He said that he (Mr. Ward) had it under the same condition. * * The next day I went back to Astoria and we talked it over, my wife and I, and we concluded we would move on the place. * * We moved up the last of August or first of September and lived with the old folks (Benjamin and Sarah Scholfield) until Mann (the tenant) vacated the place. * * We talked about it a great many times and it was always the same proposition. * * I went on the place and took possession of it and always had full possession of it according to my agreement. I took full possession of it and always had full possession, management and control of it at all times * * continuously since the fall of 1909.” Witness testified that he had paid all the taxes and the annuity of $100 per year since he had been on the place; that when he moved on the land “the house and the roof was full of holes and leaking; paper was off the walls; the woodshed was about to fall down; the barn was off its foundation and the fences were gone.” He stated: “I built all the partition .fences that are on the place now; there are two 80-rod fences running down through the center and there is a lane — a cross fence 112 rods long and one about half that length. * * And the fence around the barn lot and around the little lot in front of the house and around the orchard * * . And I constructed a fence on the west side. * * Some of the fences were woven wire with barbed wire on top, and some were barbed wire. * * And I have kept them in repair.” — 432 — He then testified that he repaired the dwelling-house and made various improvements. He swore that he would not have removed from Astoria and gone on the farm but for the agreement; also, that he made the improvements on the farm only because of the existence of the contract; that his father-in-law had said, “Every time I drove a nail or put a bit of improvement on this place, you are doing it for yourself.” "Witness testified that about two years after they went on the place two brothers by the name of Buchanan wished to purchase a strip of land for a right of way; the father-in-law refused to sell, stating that “it was up to us, * * and he couldn’t sell unless it was agreeable to us.” In this he is corroborated by the evidence of the Buchanans, by that of Shute, Scholfield’s executor, likewise by that of Rebecca Ellen Goodin, who testified that her father gave her the purchase price of $250 paid for the right of way, stating that it was her property. Goodin further testified that in order to be sure that they were entering into a legal contract with his father-in-law, he consulted eminent counsel, who advised him that the contract was valid. Concerning the ag’reement with her father, plaintiff Rebecca Ellen Goodin testified to the effect that her father had said that: “He had left me the place; that he had given me the place in the will. * # So after I came up here on one of the visits, before we had moved here, it was during the time that he still held 300 acres of land at Gaston, he said to me: ‘Beck, I am going to give each of the other girls one hundred acres of that Gaston land.’ He said: ‘I am going to give you, or have given you, * * the old home place. The old home place is not worth as much as the Gaston land, it has — 433 — been farmed so long; it has been rented; there is only 87 acres of land there; bnt I consider the difference between the locations of where the old home place is and the Gaston place, it evens you about up with the other girls. You are only getting 87 acres but the girls are getting a hundred, but your location is just a little better than the other girls’.’ He said it was ours to do as we pleased with it. And I asked him what we should do about this; I thought it was best to consult him; and he said: ‘Do as you please; I have given it to you.’ * * When we first went there he said: ‘The buildings are so dilapidated I don’t believe you can hardly live in them, but fix them up the best you can and maybe after a while you can put new buildings on the place.’ He said one day when he was down there: ‘Beck, I have given you this farm because I don’t believe you will ever sell it.’ ” She testified that in Astoria one day before moving up to the old home place to live, her father said: “That he would be glad when we moved up there on to the farm; he had always looked forward to us moving there and * * making my home on the place. After he told me he had given it to me he said: ‘Mother is having spells oftener of late and I want some of you children closer to us. If you are up on the farm, if we don’t feel like living at home we can go and stay with you, and you will 'be handy to us, whenever we need one of you girls you will be close there where we can send for you.’ He told me he had given it to me. He would always say: ‘It is your home; it is your place.’ * * He told us it was so badly run down it was going to be hard or worse every year, and he said, ‘You better come up and live on it and improve it. * * The place is yours, and I expect Will to make improvements and pay the taxes, and pay me $100 a year.’ He said at one time: ‘I don’t like, Becky, to have you pay that hundred dollars a year, but I am afraid the others would not like it if you did not.’ He said: ‘The Wards — 434 — have it the same way you have. Ward has two hundred acres and is paying 200 dollars a year and the taxes, and it would be right for you to pay about 100 dollars a year and the taxes.’ We were to pay it to him during his lifetime, or, if Mother should outlive him, during her lifetime.” She further testified that the taxes and the hundred dollars a year had been paid according to the terms of the agreement. In reference to the Buchanans’ deal for the roadway referred to above, she stated that her father had given her the money received therefor. “I said: ‘Father, that is not mine; the land is yours’; and he said: ‘No, it is not, Beck. Before Will Goodin came on the place I told him that I had given you 87 acres of land, and I don’t want it said when I am dead that I have robbed you out of one foot. There is that money that that acre and a fraction came to; you still have your 86 acres.’ ” Witness then described the decayed condition of the dwelling-house situate upon the farm. She said: “The year before we went there, there had been sheep on the place and they had used the house for a shed; they were running in the house and using it.” She gave evidence concerning the rebuilding of the old farm, of the repairing of buildings, and of the making of additional improvements. She testified that she would not have moved on the place but for the contract with her father, and from that understanding she was led to believe, from what her father said and did, that the property was to be willed to her; that he had declared to her that he was getting tired of receiving nothing out of it and said that Sholes would buy the farm, “and if you folks don’t — 435 — come on it and run it I will sell it. ’ ’ She stated that he had said to her: “ * * That Hattie had moved to Portland and he wanted one of the children closer than the other one at Gaston, and he wanted me to live close there so if we were needed. * # That I was to get the farm after he passed away if we would go on the place, keep up the improvements and put them on and pay the taxes and give him $100 a year. He said: ‘I have willed the place to you. It is your farm.’ He would always make that remark. "Whenever I would ask him about making any improvements he would say: ‘Do what you please. It is your home.’ ” "Witness testified that after plaintiffs moved upon the farm the exclusive control and management of the same was in them. Mary Jane "Ward gave important testimony to the effect that the Goodins had the same kind of a contract for the home place that she had for her place. Loren Porter, an old inhabitant of Washington County and a next door neighbor of the Scholfields, testified that Benjamin Scholfield told him that he had given the farm to the plaintiffs. W. G. Hare of Washington County is an important witness. He was a nephew of Benjamin Scholfield and enjoyed friendly relations with all of the members of the family. He had assisted in redrafting one of the Scholfield wills. He had examined two of the wills and had knowledge of the agreement between the plaintiffs and the deceased. He was the attorney for the executor of the last will and testament of Benjamin Scholfield, deceased, and, being familiar with all the facts, and with the whole transaction, advised the executor to make no appearance in this suit. Mr. Hare’s testimony strongly corrobo — 436 — rates the claim made by the plaintiffs. He testified to the circumstances of redrafting the will, which was done at the request of Benjamin Scholfield so as to eliminate a devise of real property in favor of Mrs. Yoder and to substitute in lieu thereof a specific bequest of money. In this second will, as in the first, the old home place was devised to the plaintiff, Rebecca Ellen Goodin. He was not certain as to the date of the second will, but was “positive that it was since the Goodins came up here from Astoria.” He further testified concerning a number of conversations in which Mr. Scholfield clearly indicated to him that the old home place was the property of, or would be the property of, the plaintiff Rebecca Goodin. He gave testimony relating to the disappointment of the old gentleman in regard to the tenant’s permitting the place to run down, and concerning the pleasure he got out of the place after the same had been transformed from a wilderness of weeds to a fertile farm by "Will Goodin. Witness stated that many times he had heard Mr. Scholfield, when speaking of the place, refer to it as Beck’s, and to the Gaston property as Ward’s land and Ruth’s land; that he had heard bim apply the names of his children to these different places in many conversations. Among other conversations testified to, he said: “He [Mr. Scholfield] was in my office many times. I saw him when he would come to Hillsboro and throughout those conversations and at different times he has told me — referred to that place as Beck’s, and I knew he willed it to Becky. * * The Goodins and Wards were both paying the taxes and they were to pay him a small rental; he said he just needed enough to take care of the old horse and something for him and mother to go on; I don’t know that he told me the exact amounts, but it was some sum. * * — 437 — I know that he expressed pleasure with the way the Goodins were building up the place. I am positive of that.” Witness testified that Mr. Scholfield, in referring to the place given to the Wards, as well as to that given to the Goodins, said that: “They might as well have something out of it now, as to wait until I am gone.” J. W. Shute, executor of the last will and testament, testified that Mr. Scholfield had told him many times that he intended to give that whole place to Beck. Edward Ward, a son-in-law of Benjamin Scholfield, although an adverse party, gave testimony that corroborates the plaintiffs. He testified to a contract with Scholfield similar to that of the Goodins; to expending nine or ten thousand dollars upon the lands promised to be devised, and that his father-in-law carried out the agreement by willing the tract to Mrs. Ward, wife of witness. Mrs. Cornelius, one of defendants, testified to a conversation with her as follows: “I intended to give it to you, but Becky has asked me to give it to her and I have given it to her to keep peace. I think it would be better. * * I gave her that place and then I will give you the hundred acres. * * I will give Molly the other hundred, — that is Mrs. Ward.” Mrs. Yoder, another defendant, testified, in response to this question: “Q. How did he tell you he had fixed things then? “A. He said that he had left the Gaston property, those three different parcels of one hundred acres each, to Mrs. Cornelius, Mrs. Ward and myself, and had given — and would leave the place, the home place, to Becky. He said: ‘You know she wants it.’ — 438 — “Q. Did he later tell you that he had made it out, made out a will and had given you three girls the place at Gaston and had given Becky the home place? “A. That is the time. “Q. You heard him say that? “A. Yes, sir.” T. S. Cornelius, another defendant, testified that his father-in-law said to him that he intended to leave the home place to Becky. William Seholfield, another defendant, testified that his father said “that the place was run down and he wanted it built up; that the renters took everything off and put nothing on; that at his death they [plaintiffs] would get the place if they took an interest in it and built it up. He said: ‘You remember we had good crops here and the place can be built up again and make them a good home.’ He said that Rebecca wanted it and he had made up his mind that she should have it.” William Tupper, a cousin of Mrs. Seholfield, testified that after the Goodins had moved on to the old home place Mr. Seholfield told him he had given it to Becky. J. W. Reeves, ex-sheriff of Washington County, who had lived much of his lifetime in the vicinity of the Seholfield home, said that he had heard Mr. Seholfield say he wanted Mrs. Goodin to have the home place, and that it was his understanding from the conversation that Mr. Seholfield intended to leave a deed to Becky for the property so that when he died the old home place would go to her. J. W. Goodin, county judge, and a relative of the plaintiffs, testified that Benjamin Seholfield had told him he had promised Becky the place provided they would move' on the place and improve it, and that — 439 — something was said concerning rental and taxes which, the witness did not remember. Another neighbor, S. M. Chapman, testified that Mr. Scholfield was much pleased with the great improvement made by the Goodins in the condition of the farm, and that he said: “ ‘Yes, he was very much pleased with the way Mr. Goodin was doing; but,’ he said, ‘he can afford to keep the place up for it is his place anyway, or his wife’s place, when I am dead and gone; it will belong to her, and he can afford to improve it and keep it up.’ * * He said that Mr. Goodin paid the taxes on it and gave him a little besides that; * * that the place was to go to Mrs. Goodin at his death.” The testimony shows that the plaintiffs are now, and ever since the tenth day of October, 1909, have been, in the lawful, open, notorious and exclusive possession of the real property in controversy, claiming the same under the terms of the alleged contract. For years after the contract was made, Benjamin Scholfield, by word, act and deed, recognized the binding force of the agreement he had made with plaintiffs. We have set down much of the evidence adduced upon the trial of the cause in the court below for the reason that the question involved is one of fact. Additional corroborative evidence could be recited, but brevity forbids. All issues of law arising in this cause have heretofore been settled in Oregon. In a similar case, this court recently said: “The issue is governed by such cases as Barrett v. Schleich, 37 Or. 613 (62 Pac. 792). Further citation of precedents is unnecessary. The principles are well settled. The cases are in harmony. They turn uniformly upon a question of fact and the suffi — 440 — ciency of the acts of the parties to amount to part performance.” Hayes v. Hayes, 89 Or. 630 (174 Pac. 579). 2, 3. The complaint alleges an oral ag’reement cr«sating an interest in land. To remove the contract from the statute of frauds, plaintiffs rely upon possession, the making of substantial improvements on the farm, and other valuable considerations moving from them to Benjamin Scholfield. In order that such an agreement may be enforced by a court of equity, it must be clear, definite, certain, just, reasonable, and mutual in all its parts: Odell v. Morin, 5 Or. 96; Brown v. Lord, 7 Or. 302; Wagonblast v. Whitney, 12 Or. 83 (6 Pac. 399); Knight v. Alexander, 42 Or. 521 (71 Pac. 567); Tucker v. Kirkpatrick, 86 Or. 681 (169 Pac. 117). It has been accurately stated that the certainty of such a contract must be established by evidence, sufficient to satisfy a court of equity of the truth of the allegations of the complaint; but proof beyond a reasonable doubt is not required: Goff v. Kelsey, 78 Or. 337 (150 Pac. 103). When the condition of the old home place, the situation of the parties, their ages, relationship, and the health of the mother, are considered, the evidence given at the trial satisfies these requirements. It will be remembered that one of the reasons given by the father for wanting the daughter to take over the old home place was that she would then be near her aged mother during her illness. This is a part of the consideration that dollars cannot measure. 4,5. Corroborating and confirming plaintiffs’ claim under the contract, much evidence was offered and admitted of declarations against interest made by Benjamin Scholfield during his lifetime. This evidence was relevant and under the express provisions — 441 — of the Code was admissible: Sections 710 and 727, snbd. 4, Or. L., and notes. Nevertheless, the oral declarations will be considered by the court with caution: Stalker v. Stalker, 78 Or. 291 (153 Pac. 52). Some of the witnesses assert that a year or two before Benjamin Scholfield died, he changed his mind in the matter of devising all of the land constituting the old home place to the plaintiff Rebecca Ellen Goodin as he originally intended and as he had provided in at least two of his wills. The will in existence at the' time of the contract and the one he made following the contract devised the land to Rebecca. The reason for altering the devise to the plaintiff is unknown to us. Each witness who testified concerning what the testator said about the matter gave a different reason. The change was without the consent of, and was unknown to, the plaintiffs. It was made after the plaintiffs had been in the exclusive possession of the farm for years, after they had made valuable improvements, paid the taxes and $100 a year, all in accordance with the contract, and after plaintiffs had changed the character of the soil from that of a weed bed to a highly cultivated farm. The plaintiffs had performed these acts in reliance upon the contract, and all things done by them toward improving the farm are referable to the contract. 6. The parties to the contract proved to have been made in the case at bar were competent to enter into that agreement; and, when made, the testator Benjamin Scholfield had no lawful right to alter his will so as to reduce the acreage of the old home place devised to Rebecca Goodin: Kelley v. Devin, 65 Or. 211 (132 Pac. 535); Wood v. Dunn, 81 Or. 471 (159 Pac. 1158). — 442 — In the Court of Chancery of New Jersey, it was said: “Agreements for family arrangements with respect to property are viewed with favor by this court. They ought to be respected and scrupulously carried out by the parties to them, and if they are not a court of equity ought to enforce their execution.” Johnson v. Hubbell, 10 N. J. Eq. 332 (66 Am. Dec. 773). The decree appealed from is affirmed. Affirmed. Burnett, C. J., and Johns and Bean, JJ., concur.