Part performance of an oral contract for the conveyance of an
interest in real estate in the District of Columbia takes it out of
the operation of the statute of frauds, and authorizes a court of
equity to decree a full and specific performance of it if
proved.
This was a bill in equity for the specific performance of an
oral contract for the sale of land.
The bill made substantially the following case: Thomas Riggles,
ancestor both of plaintiffs and defendant, died in 1863, leaving a
will, in which he made the following devises:
Page 154 U. S. 245
"I will and devise that my house and premises which I now
occupy, situated in the City of Washington in the District of
Columbia, being lot numbered seven (7) and part of lot numbered
eight (8) in square numbered one hundred and ninety-nine (199),
together with all the household and kitchen furniture and other
personal property that may be on said premises at the time of my
decease, shall be and remain in the possession of my wife,
Catharine Riggles, during her lifetime, for the benefit of herself
and our four children, named Thomas, Catharine, Maria, and Hannah
Riggles, respectively, and after the death of my said wife, the
said house and premises to remain in the hands of my executor,
hereinafter named, to be by him used for the benefit of the
above-named four children until the youngest one of them surviving
shall become twenty-one years of age,
provided that when
the said Thomas shall arrive at twenty-one years of age, and when
either of the said daughters shall be married, then, and in either
such case, the benefit arising from said property shall be
exclusively for the use of such of said daughters as may then be
unmarried, and after the death of my said wife, and the said
youngest child shall attain the age of twenty-one year, then the
said house and premises I will and bequeath unto my son, Thomas
Riggles, with the express provision that such of my aforenamed
daughters as may then be unmarried shall be taken care of by my
said son Thomas, and in case the said Thomas Riggles shall depart
this life before the said three sisters, then the said house and
premises to be sold, and the proceeds be divided equally among the
said three sisters, or the survivors of them."
"Item. I will and devise that all the lots of ground belonging
to me situate in square numbered one hundred and seventy-nine (179)
in said City of Washington which may remain unsold and disposed of
by my said executor at such time and in such manner as his
discretion may dictate as most for the advantage of my wife and
children aforenamed, and the amounts that may be realized
therefrom, after paying all necessary expenses of my wife and
family, be by him
Page 154 U. S. 246
invested at his discretion for the benefit of my said wife and
four children, or as many of them as shall remain unmarried, and
after the death of my said wife, and our four children shall have
attained the age of twenty-one years, if any of said property in
square one hundred and seventy-nine remains unsold, and also any
surplus that may then remain from the proceeds of said square one
hundred and seventy-nine, to be divided between my other children,
John, James, and William Riggles, and my daughters Mary Ann Miller
and Sarah Turton, and it is farther my wish and desire that should
the residue remaining from the sale of my lots in square one
hundred and seventy-nine be more than the value of said house and
premises I now occupy in square one hundred and ninety-nine, then
and in that case I wish and devise that my son Thomas and my said
daughters Catharine, Maria, and Hannah Riggles shall receive from
the proceeds of square one hundred and seventy-nine such portion of
such proceeds as make all their shares alike or equal to each other
and to the shares of my other children."
Under this will, John B. Turton subdivided square 179, sold
portions of the same, and died, leaving lots from 1 to 42 and from
61 to 80, inclusive, unsold, and subject to a deed of trust
executed by him to secure the repayment of certain moneys borrowed.
Such moneys, as well as the proceeds of the lots sold, were alleged
to have been appropriated to the support of the widow and her four
children.
In 1873, the widow and her four children, Thomas, Maria,
Catharine, and Hannah, desiring to have the property in square 179
sold for the purpose of a partial division of the estate, and for
the purpose of paying certain indebtedness they had incurred, as
well as certain taxes and assessments upon the homestead, it was
proposed and agreed that notwithstanding the devises in the will,
the entire estate should be equally divided between the widow and
the children of the testator; that the lots in square 179 should be
at once sold for the payment of the encumbrances, taxes, and
assessments upon the whole realty, and of the indebtedness of the
widow and her four children, and that the net proceeds
Page 154 U. S. 247
should be divided between the widow and all the children, and
that the homestead should be retained for the use and occupation of
the widow and her four children until her death and the death or
marriage of her daughters, when the said homestead property should
be sold and the proceeds divided among all the children of the
testator.
In pursuance of this arrangement, a deed was executed whereby
all the parties in interest conveyed to John Riggles and George W.
Evans the remaining lots in square 179, in trust to sell and
dispose of the same, to pay and discharge all taxes and assessments
due upon the lots in both squares, and, after paying and
discharging all liens, taxes, and assessments upon all the
property, to distribute the remainder of the proceeds between the
widow and children in equal proportions, share and share alike,
and
"that the said deed was made and executed by all of the parties,
including the defendant Hannah Erney (who executed the said deed as
Hannah Riggles), upon the distinct agreement and condition that
whenever under the said will and testament that the said property
in square 199 should be sold, the proceeds of such sale should be
applied and distributed in the same manner."
The trustees, Riggles and Evans, proceeded under this
arrangement, sold the lots in square 179 from time to time, paid
the liens and encumbrances upon the property, as well as taxes and
assessments, paid and discharged the indebtedness contracted by the
widow and her four children, including defendant Hannah Erney, for
their maintenance, and also advanced to the widow the further sum
of $500, the said payments on account of the said homestead
property, and of the maintenance and support of the widow and her
four children, amounting to nearly $3,000. After such payments the
trustees divided the remainder of the proceeds among all the
children of the testator, the share so paid to each of the devisees
being over $3,000 and such distribution being made strictly in
pursuance of the original agreement.
That the period has arrived when the lots in square 199 should
be sold, and the proceeds divided; that the widow is
Page 154 U. S. 248
dead, as well as three of her four children, leaving Hannah
Erney sole survivor of such devisee; that plaintiffs have applied
to defendant Hannah to carry out this agreement, but she refuses to
acknowledge it, and claims that under the provisions of the will,
she, as the sole survivor of the devisees of the lots in square
199, is entitled to all of said property and the proceeds thereof.
Plaintiffs further averred that her agreement to sell the homestead
property was the only consideration for the appropriation to the
widow and her four children of the proceeds of sale of the property
in square 179; that under the will, defendant and her co-devisees
were not entitled to any portion of such property except for their
current support, while the daughters were unmarried, and that
plaintiffs, by making the agreement, gave the defendant Hannah and
her co-devisees $18,000 -- much more than the entire value of the
homestead property; that it was the intention of the testator that
in the ultimate division of the estate all the children should have
an equal share; that such intention was recognized, and was the
basis upon which the agreement was made, and that the distribution
of the proceeds of the sales of square 179 was in partial execution
of such intention and agreement.
The prayer of the bill was that defendants Hannah and her
husband might be enjoined from disposing of the property in square
199 until the rights of the parties could be definitely settled,
and that such property might be sold and the proceeds distributed
upon the basis of the agreement.
Defendant Hannah Erney, in her separate answer, admitted signing
the deed for the sale of the remaining lots in square 179, but
denied there was any agreement or condition that the homestead
should be sold and the proceeds divided in the same manner.
Replication was filed, proofs taken, and, the case coming on to
be heard in the court below, the bill was dismissed upon the ground
that the statute of frauds presented an insurmountable barrier to
relief. Plaintiffs appealed to the general term, by which the
decree of the special
Page 154 U. S. 249
term was affirmed, and the plaintiffs appealed to this Court.
*
Page 154 U. S. 251
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The sole question is whether the plaintiffs have made out such a
case as entitles them, under the statute of frauds, to a specific
performance of the alleged agreement for the sale of the homestead
property in square 199, and an equal division of the proceeds.
Thomas Riggles, the ancestor, was possessed of two parcels of
land in Washington,
viz.: certain lots in square 199,
containing the homestead, worth from $6,000 to $8,000, and a large
number of lots in square 179, then unimproved, and worth about
$40,000.
Page 154 U. S. 252
The lots in square 199, the homestead, he left to his widow for
life, for the benefit of herself and her four children; after her
death, to his executors, for the benefit of his four children until
the youngest should become of age, and then to his son Thomas,
charged with the care and support of the unmarried daughters by his
second wife; and, in case of the death of Thomas before his
sisters, the property was to be sold, and the proceeds equally
divided among these sisters.
The lots in square 179 were also charged with the maintenance
and necessary expenses of his wife and her four children during her
life, and, after her death, with the support of the children, until
the youngest should become of age. The executor was given power to
dispose of all of 179 if, in his discretion, it should become
necessary to apply the same to such use, and any surplus that
should remain was to be divided among testator's children by his
first wife, but should such residue remaining from 179 be more than
the value of the homestead property, the children by the second
wife should receive from such proceeds such portions as to make
their shares alike or equal to each other and the shares of the
other children.
Thomas Riggles, Jr., son of the second wife, died December 27,
1883; Catharine Riggles, widow, died November, 1884. Hannah Riggles
Erney, by the death of her brother and sisters, is the sole
survivor of the children of the second wife, and entitled to the
homestead under the will.
Plaintiffs' testimony tended to show that at a meeting of the
widow and all the heirs of the estate in June, 1873, it was agreed
that the entire estate should be equally divided among the widow
and children; that the lots in square 179 should be immediately
sold, and the net proceeds, after payment of encumbrances, taxes,
and assessments upon the whole estate, should be divided between
the widow and all the children, and that the homestead lots in
square 199 should be retained for the use of the widow and her
children until her death or the death or marriage of the daughters,
when this property should also be sold and the proceeds divided
among all the children. This agreement, so far as it concerned lots
in 179,
Page 154 U. S. 253
was carried out; so far as it concerned square 199, it was
denied, and the statute pleaded.
But if the contract was made, as claimed, the sale and division
of proceeds of the lots in square 179 was a part performance of
such contracts under the decisions both of this Court and of
Maryland. The case of
Caldwell v.
Carrington, 9 Pet. 86, is not dissimilar. This was
a bill filed by Carrington's heirs in the Circuit Court for the
District of Kentucky claiming certain lands in that state under a
parol agreement by which Carrington agreed with Williams for an
exchange of lands which Carrington owned in Virginia for certain
military lands in Kentucky. Williams took possession of the lands
in Virginia and sold a part of them. The bill prayed that the heirs
of Williams should be decreed to convey the military lands in
Kentucky. This Court held that although the statute of frauds
avoids parol contracts for lands, yet the complete execution of the
contract in this case by Carrington, by conveying to Williams the
lands he had agreed to give him in exchange, prevented the
operation of the statute.
See also Galbraith v. McLain, 84
Ill. 379;
Paine v. Wilcox, 16 Wis. 202. So in
Neale v. Neale,
9 Wall. 1, a parol gift of land was made to a donee, who took
possession, and, induced by the promise of the donor to give a deed
of it, made valuable improvements on the property. It was held
that, the donor having stipulated that the expenditure should be
made, this should be regarded as a consideration or condition of
the gift, and a specific performance was decreed. To same effect is
Hardesty v. Richardson, 44 Md. 617. So in
Bigelow v.
Armes, 108 U. S. 10. Armes
proposed in writing to Bigelow to exchange his real estate for
Bigelow's, with a cash bonus. The latter accepted in writing. Armes
complied in full, Bigelow in part only. It was held to be
unnecessary to determine whether the written memorandum was
sufficient, as it was the duty of the court, in view of the full
performance by Armes, to decree performance by Bigelow. There are
other cases in this Court in which the evidence was deemed
insufficient to justify a decree for specific performance, but the
principle of the cases above cited has never been questioned.
Page 154 U. S. 254
Colson v.
Thompson, 2 Wheat. 336;
Purcell v.
Miner, 4 Wall. 513;
Grafton v. Cummings,
99 U. S. 100.
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 the 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. It must appear, however,
that the acts done by the plaintiff were done in pursuance of the
contract, and for the purpose of carrying it into execution, and
with the consent or knowledge of the other party. While acts done
prior to the contract or preparatory thereto, such as delivering
abstracts of titles, measuring the land, drawing up deeds, etc.,
are not regarded as sufficient part performance, it is otherwise
with such acts as taking open possession of the land sold, or
making permanent or valuable improvements thereon, or doing other
acts in relation to the land manifestly inconsistent with any other
theory than that of carrying out the parol undertaking.
Plaintiff introduced the testimony of three witnesses, all of
which tended to show that a meeting of all the heirs was held the
last of May, 1873, at the homestead at which it was agreed to sell
square 179, pay off the indebtedness, and divide the balance. The
indebtedness consisted of taxes upon square 179 and a mortgage debt
upon it, the indebtedness of the widow, and the taxes due upon the
homestead occupied by her in square 199. There was another meeting
in June at which there was a deed read which had been prepared.
John Riggles, who appeared for the first wife, objected to the deed
upon the ground that it was not in accordance with the will, when
Mr. Evans, who appeared on behalf of the children of the second
wife, promised that the children should share and share alike in
the house at the death of the mother, and said
Page 154 U. S. 255
"that it would not be fair for the children of the last wife to
do all the waiting and the children of the first wife get their
share at once; that it would only be equitable for the children of
the first wife to do part of the waiting and share equally with
them, so that it would be literally carried out, and we consented
to divide equally upon that basis, and would have refused to have
sold any more than sufficient to pay off the indebtedness unless
they would agree to this equitable division, which was agreed to by
all the heirs without any objection."
The agreement, so far as concerned square 179, was carried out,
and defendant Hannah was paid about $3,000 as her share of the
proceeds of the sale. Mr. Evans, who, as before stated, appeared
for the children of the second wife, among whom was defendant
Hannah, after stating that it was understood that the homestead was
to be sold, says that
"it was a distinct and positive verbal agreement, thoroughly
understood and consented to by all without reservation; we did not
wish to send the deed back for a change, fearing that delays were
dangerous; we were anxious to settle."
"Q. Do you know that Hannah Riggles Erney understood positively
that she was consenting and agreeing to break the terms of her
father's will?"
"A. I do not know that she did. . . . As I said before, I
represented the children by the second wife, and my wife's
interest, like Mrs. Erney's, I was bound to protect in every way. I
therefore consulted with her, explained the terms of the deed, read
the will to her, and asked her, as well as the other heirs by the
second wife, if she thoroughly understood and consented to selling
the property. She was satisfied, and so expressed herself."
This testimony was also corroborated by Sarah A. Turton, one of
the children by the first wife.
The only testimony to the contrary is that of defendant herself,
who always understood that the land was sold "to pay the
indebtedness of mother, and then it was to be divided equally, and
that is all." She remembered of but one meeting, but acknowledged
that Mr. Evans was her representative in the transaction. She
denied entering into any contract concerning
Page 154 U. S. 256
the disposition of the land, but her testimony is quite
unsatisfactory and her memory evidently defective.
By the terms of the will, square 179, after being charged with
the maintenance and support of the widow and her four children
during her life, and after her death until the youngest should
become of age, was to be sold, and the proceeds to be divided
between the children of the first wife, with a proviso that if the
lands so sold should exceed the value of the homestead lands, the
children of the second wife should receive enough to make the
shares of all equal.
The ultimate objects of the will were first to provide for the
maintenance and expenses of the wife and younger children until
they became of age, and second that the property should then be
equally divided between them. This equality would certainly be
defeated if the defendant Hannah were permitted to share equally in
the proceeds of square 179, and in addition to receive the whole of
the proceeds of square 199. It seems to us altogether improbable
that the children of the first wife would have entered into this
arrangement without an understanding that they were also to share
in the proceeds of the homestead.
The decree of the court below is therefore reversed, and the
case remanded for further proceedings in conformity with this
opinion.
MR. JUSTICE BREWER and MR. JUSTICE WHITE dissented from this
opinion.
* The judgment of the court below was as follows:
"This cause having been duly calendared and argued and submitted
and the proofs read and considered, and it appearing to the court
that the provisions of the statute of frauds in respect to
contracts for and conveyances of interests in real estate present
an insurmountable barrier to granting the relief prayed upon the
case as made in the bill and attempted to be made out in proof, it
is this 14th of November, A.D. 1887, ordered, adjudged, and decreed
that the bill in this cause be dismissed with costs."
The judgment of the appellate court was as follows:
"This cause came on to be heard at this term of the court on
appeal by the complainants, John Riggles,
et als. from the
decree passed therein on the 14th day of November, 1887, 1887,
dismissing the bill with costs, and was argued by counsel for the
respective parties and submitted. Upon consideration thereof, it is
now here, this 18th day of February, A.D. 1890, adjudged and
decreed and is hereby affirmed with costs, to be taxed by the
clerk."
