McPherson v. Berry

Deemer, J. Elizabeth McPherson died from the effects of a cancer. She had been a sufferer for many months prior to her decease with the disease which finally resulted in her death. There is some evidence tending to show that, at the time of the execution of the deed to Mrs. Berry, she did not possess sufficient capacity of mind to make the conveyance, but the preponderance of the testimony leads us to the conclusion, however, that she fully understood the transaction, its legal effect and consequences, and that she had sufficient mental capacity to execute the instrument. We are not expected to set out the testimony upon which this finding is based, for it would serve no useful purpose. It is sufficient to state our conclusion. There is no evidence to show any influence of any kind exercised by the daughter over her to induce her to make the deed, and the claim that the deed was executed through undue influence is without support in the testimony. [67] II. We next inquire as to whether the alleged contract between plaintiffs and Mrs. McPherson is established or not. The McPherson family, consisting of Elizabeth, her husband, the plaintiffs, and Mrs. Berry, resided upon the land in controversy for the period of about fifteen years, and continued to reside there until within about two months prior to the death of Mrs. McPherson. They lived together as one family, the plaintiffs doing the larger part of the work, both before and after the death of their father. ■ Alexander McPherson, one of the sons, had the greater part in the management of the farm during the time the family resided there. The father was in ill health, and the family relied upon the plaintiffs to conduct the farm. The death of the father brought about no change in the direction of the business until the removal of Mrs. McPherson and the plaintiff, Henry McPherson, to the house of Mrs. Berry, in February, 1888. To [68] support the alleged agreement that plaintiffs were to have the farm in consideration of the care and support of their mother, they rely upon declarations of the mother made to various disinterested parties, during her lifetime, to the effect that such an agreement had been made. These declarations, made to many witnesses, both before and after the death of her husband, were to the effect that she • had made an agreement with her sons by which, “if they would take care of her during her lifetime, they were to have what was left when she was done with it.” “She told the boys that if they would stay with her, and take care of her, then, when she was done with it, what was there, why, they should have it.” “She said the boys had made the farm. They had grubbed it out, and, when she was done with it, that they ought to have it.” “The agreement was with the' boys, that the boys were ' to stay there, and take care of them [the parents] as long as they lived, and, when they were gone, why, everything was to fall to the boys — the land and everything. That was the agreement.” “She said the land belonged to the boys.” These statements show that it was the intention of Mrs. McPherson, until the time of her removal to her daughter’s home, that her sons should have the land, and, but for that which follows, would be sufficient to sustain the agreement relied upon. They are much stronger than those in Recknagle v. Schmaltz, 72 Iowa, 63, 33 N. W. Rep. 365, and Sample v. Collins, 81 Iowa, 23, 46 N. W. Rep. 742, and we think are sufficient to show that such an agreement was at one time made. It appears from the testimony, however, that in February, 1888, Mrs. McPherson grew very much worse. The disease was doing its deadly work, and it became apparent to her children that dissolution was near. It may also be assumed that the plaintiffs were unable to afford the mother the care and attention she [69] demanded. About this time it was agreed between Mrs. McPherson and the defendant, Mrs. Berry, that she (Mrs. Berry) would take her mother and her brother Henry into her family, and support them as long as they lived, in consideration of which she was to have a deed to the farm in question. Pursuant to this agreement, Mrs. McPherson and the plaintiffs moved into Mrs. Berry’s house. They brought with them their household furniture, and the stock which was upon the farm, and lived there, — Mrs. McPherson until her death, Henry until the present time, Alexander until June 10, 1888, and Thomas until January, 1889. The deed from Mrs. McPherson to Mrs. Berry, of date April 2, 1888, was made pursuant to this agreement. Alexander knew of this arrangement between his mother and Mrs. Berry before the removal, did not object to it, and seemingly concurred in what was done. Henry has • never complained of the arrangement, and to this day is content with it. While there is no evidence that Thomas knew of this agreement at the time it was made, yet it appears that a few weeks afterward the mother spoke, in his presence, of having the deed made out to Mrs. Berry, in order that a tenant who was distasteful might be removed from the place, and Thomas made no protest. Again, when Mrs. Berry was negotiating a sale to her brother, W. H. Berry, who now holds the title to the land, Thomas and, Henry were present, heard the negotiations, and assisted in describing the land to Berry. These facts are sufficient, and, to our minds, show 'a complete abandonment of the contract entered into by the plaintiffs with their mother. It is manifest that they became convinced that they could not further care for their mother in the condition she was in, and consented that Mrs. Berry might take her, under her agreement with-her mother. Whether this be the correct conclusion or not, the plaintiffs are by their conduct clearly estopped from claiming title to the land. [70] 2 Alexander knew of the arrangement between his mother and Mrs. Berry before Mrs. Berry undertook her care, and made no objection thereto. Thomas was present when Mrs. Berry was negotiating a sale to her brother, and not only did not demur thereto, but assisted in describing the lands to him. Henry was also present, and made no complaint, and does not now object. “If a man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his claim thereto, he shall not afterward be permitted to assert his legal rights against such person.” Bullis v. Noble, 36 Iowa, 618; Lucas v. Hart, 5 Iowa, 415. Indeed, the principle is so well settled as scarcely to need the citation of authorities. “If one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent.” [70] When Mrs. Berry was arranging to take her mother in her distress, and to care for her and her weak minded son during their lives, for the land in controversy, to the knowledge of Alexander McPherson, then was the time for him to have spoken. Then, before she had gone to the annoyance, expense, and trouble of caring for her mother, and when Thomas heard the negotiations between his sister and her brother for the sale of the land to him, was the time for him to have asserted his claim to the land; then, before W. H. Berry had expended any money in the purchase of the land. Having failed to speak when they ought, it would be most inequitable to allow them to speak and assert their rights in the land now. Defendants Mrs. Berry and W. H. Berry had no actual notice of plaintiffs’ contract with their- mother; and there is nothing outside of their possession of the land which is relied upon as giving notice to subsequent purchasers of their [71] rights. Indeed, there is nothing to take their contract out of the statute of frauds but their alleged possession and part performance of the contract. “If a party would take a case out of the statute of frauds, upon the ground of a part performance, it is indispensable that the parol contract, agreement, or gift should be established by clear, unequivocal, and distinct testimony; and the acts claimed to be done thereunder should be equally clear and definite, and referable exclusively to the said contract or gift.” Williamson v. Williamson, 4 Iowa, 279; Lich v. Lich, 81 Iowa, 84, 46 N. W. Rep. 763. Plaintiffs’ possession of the land, as shown by the testimony, was not such as to be referable exclusively to their alleged contract. For years before the contract was made, plaintiffs had possession of the land, as much as they had afterward. Alexander McPherson managed and controlled the land and the farming business before he made the contract with his parents. He did no more afterward, unless it can be said that after the removal of the family to Mrs. Berry’s, he rented it to a tenant, and was in exclusive possession under this tenant. The evidence shows, however, that this tenant rented the land, or understood he was renting the land, of Mrs. McPherson, through her agent, Alexander, and was holding under her; and, if inquiry had been made of him, it would have disclosed this fact. "There was at no time, then, such a change in the possession of the land as to give notice to subsequent purchasers of the plaintiffs’ contract. Indeed, it is questionable if there has been proof' of such part performance of the contract as to take it out of the statute of frauds. We prefer, however, to ground our decision on the propositions that there was an absolute abandonment of plaintiffs’ contract, and that they are now estopped by their conduct from asserting title to the land. The decree of the district court is reversed, and the cause is [72] remanded for a decree dismissing plaintiffs’ petition, or, at defendants’ option, they may have a decree in this court. Reversed.