A court of equity in the District of Columbia may take
jurisdiction of a bill brought against the administrator and heirs
of an intestate alleging a verbal agreement between the intestate
and the plaintiff by which the plaintiff was to contribute one-half
of the cost of a tract of land and of a dwelling house to be
erected thereon, and the intestate, after entering on the property,
was to convey to him a half interest therein,
Page 160 U. S. 172
and setting forth his performance of his part of the agreement,
and her repeated recognition of her obligation to perform her part
thereof, and her death without having done so after having
mortgaged the property for a debt of her own, and praying for an
accounting, and a decree directing payment to the plaintiff of
one-half of the value of the real estate and improvements, and a
sale of the same, and the court may decree specific performance of
so much of the contract proved as can be enforced, and compensation
to the plaintiff in damages for the deficiency.
While the mere payment of the consideration in money in such
case is insufficient to remove the bar of the statute of frauds,
such payment, accompanied by an entry of the other party into
possession under the contract, is such a part performance as will
support a bill like the present one.
The question of laches does not depend upon the fact that a
certain definite time has elapsed since the cause of action
accrued, but upon whether, under all the circumstances of the
particular case, the plaintiff is chargeable with a want of due
diligence in failing to institute proceedings earlier, and under
the peculiar circumstances of this case, the bill is not open to
the defense of laches.
The bill in this case is not open to the charge of
multifariousness.
This was a bill in equity to recover one-half the value of a
certain piece of real estate in Washington, with the house thereon
standing, of which one Julia R. Marvin died seised, together with a
like proportion of the rents of the said house and lot received by
Mrs. Marvin during her lifetime or due and unpaid since her
death.
The amended bill, which was brought against the heirs at law of
Julia R. Marvin, the administrator of her estate, and the trustee
named in a deed of trust of the property in question, averred in
substance that said Julia R. Marvin was seised in fee and possessed
of a certain lot of land upon Sixteenth Street, in the City of
Washington; that she died on February 3, 1889, intestate as to her
real estate, and that letters of administration were granted by the
probate court to the defendant Hood.
After several immaterial averments as to the relationship of the
several defendants, the execution of a trust deed to secure the
payment of $10,000, the collection of rents by the intestate,
Marvin, and her administrator, the bill averred, in substance, as
follows:
That in March, 1879, an agreement was entered into between
Page 160 U. S. 173
the plaintiff and Mrs. Marvin by which he agreed to contribute
in money and in labor one-half of the original cost of the said
parcel of land and a dwelling house to be erected thereon, and in
consideration thereof Mrs. Marvin agreed to convey to him a half
interest in the land and dwelling house, so that the same should be
owned jointly by himself and Mrs. Marvin;
"that at the time of making said agreement, there was no note or
memorandum thereof in writing, but in performance of the same on
his part the plaintiff gave his personal attention and supervision
to the selection and purchase of the materials for the said
dwelling house and the erection of the same,"
and also expended the sum of $4,000 in defraying the cost of the
house; that this agreement, although not reduced to writing, on
account of the intimate personal relations existing between the
parties and the entire confidence they reposed in each other, had
been fully performed by the plaintiff, the amount of money
contributed by him, and the value of his services in selecting and
purchasing the materials for the dwelling house and in
superintending the erection of the same being equal altogether to
one-half the cost of the land and house; that Mrs. Marvin died
without having executed her part of the agreement by conveying to
the plaintiff the half interest in the land and house, although she
had repeatedly recognized the claim in her lifetime, and had
declared to plaintiff and others that she had made adequate
provisions for the same in her last will and testament; that the
services of the plaintiff were rendered in the years 1879 and 1880,
and the money paid by him in defraying the cost of the house and
land was paid during the years 1879, 1880, 1881, 1882, 1883, and
1884, in various sums to Mrs. Marvin, and sent to her in drafts by
mail, as is evidenced by her repeated acknowledgments to him and
others during her lifetime, and by certain checks endorsed by
her.
That from the time of the rendition of the said services and the
payment of the said money by the plaintiff in performance of his
said agreement until the day of the death of the said Julia R.
Marvin, the plaintiff constantly and repeatedly urged her to come
to a settlement with him, and to perform her part
Page 160 U. S. 174
of the agreement by conveying to him a one-half interest in the
parcel of land and the dwelling house erected thereon; that she
always, whenever the subject was referred to, recognized and
acknowledged the validity and justice of the claim, and assured the
plaintiff that she had provided for the same in her last will and
testament; that on the 4th day of January, 1888, she
"admitted to a mutual friend that the house never would have
been built but for the fact that she and the plaintiff had built it
together, and that he had taken the management of it all, as she
never could have done and never would have attempted; that he had
paid her in all $4,000, which she had used; that such was her
feeling towards him that she intended the house should be his when
she was done with it, and should belong to them jointly while she
lived; that on the 14th day of November, 1887, she acknowledged to
the same mutual friend that the plaintiff had, since 1878, when the
lot was bought and they began planning for the house, up to 1883,
paid her $4,000; that she had always regarded the house as
belonging to them jointly; that she intended it should be his at
her death, and that her will, then written, had so provided;"
that on account of her repeated and constant acknowledgment of
the validity of his claim by her, and on account of the
representations hereinbefore referred to as having been made to the
said mutual friend and others, which representations were
communicated to the plaintiff, and on account of the intimate
personal relations always existing between them, and the unlimited
confidence he reposed in her, they having lived together for a long
time in the same dwelling house, and she having treated and spoken
of him as a foster child, the plaintiff failed and omitted to take
such measures for the enforcement of his rights as, under other
circumstances, he would have taken. The plaintiff averred that by
the course adopted by her, and without any fault on his part, he
had been lulled into a false security, and that he would have
instituted his suit during her lifetime for the specific
performance of her contract but for the assurance, repeatedly made
to him and to others, that she had by her will devised the entire
property to him; that the
Page 160 U. S. 175
plaintiff did not know until the death of Mrs. Marvin of her
failure to carry out her agreement, when he learned to his surprise
that she had died intestate as to her real estate.
The prayer of the bill was that an account might be taken of the
debt claimed by the plaintiff to be due him; an account of the debt
due to White, in whose favor the trust deed had been executed, and
of other debts and demands against the estate; an account of the
value of the lot and house and of other real estate of which Mrs.
Marvin died seised; an account of the rents received by Mrs. Marvin
during her lifetime and since her death, and for a decree directing
payment to the plaintiff of a sum equal to half the value of the
house and lot and of the rents received or due, for a sale of the
house and lot for the purpose of paying the same, and for a
distribution of the residue of the proceeds among those entitled
thereto as next of kin or heirs at law.
A demurrer was interposed to this amended bill, which was
sustained by the supreme court, and an appeal taken to the general
term, by which the decree of the special term was affirmed, and the
bill dismissed. 20 D.C.197. Plaintiff thereupon took an appeal to
this Court.
Page 160 U. S. 178
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
1. The ultimate object of the bill in this case is the recovery
of a pecuniary demand, and if this were its only object, it
Page 160 U. S. 179
would be obnoxious to the general rule embodied in Rev.Stat.
§ 723, inhibiting the maintenance of a suit in equity where
the remedy at law is plain, adequate, and complete.
The bill, however, in addition to the recovery of money, seeks
to establish a trust in favor of the plaintiff and to obtain a sale
of the property to satisfy his claim. The prayer is not for a
reimbursement to the plaintiff of the sums advanced, but for the
payment to him of a sum equal to one-half the value of the house
and lot in which he claims an interest, and of the rents accrued
thereon. Had it not been for the fact that, subsequent to the
outlays made by the plaintiff in improving the property, Mrs.
Marvin had encumbered it by a trust deed in favor of Amos White in
the sum of $10,000, an ordinary bill for a specific performance
would have been the proper remedy; but as the court upon such a
bill could only decree him one-half the property subject to such
mortgage, he claims in this bill the full moiety of the value of
the property, as it stood when the disbursements were made and
before it was encumbered by the mortgage, and prays that such
amount may be awarded him from the sale of the property, and that
in respect to the residue, if any, he stand as a general creditor
of her estate.
The case is not unlike that of
Wylie v.
Coxe, 15 How. 415, where a bill was filed to
recover a contingent fee of five percent out of a certain fund
arising from the prosecution of a claim against the Republic of
Mexico. It was held that the death of the owner of the fund did not
dissolve the contract, but that the right to compensation
constituted a lien upon the money when recovered, and that this was
sufficient ground for jurisdiction in equity inasmuch as the
payment of the fund to the executrix in Mexico would place it
probably beyond the reach of the complainant.
Still more nearly analogous in principle is the case of
Seymour v.
Freer, 8 Wall. 202. This suit was founded upon an
agreement between Seymour and one Price by which Price undertook to
devote his time and judgment to the selection and purchase of land
to a certain amount, with a stipulation that the lands should be
sold within five years, and one-half
Page 160 U. S. 180
of the profits should be paid to Price and the other to Seymour.
It was held that Seymour took the legal title in trust for the
purpose specified, and to this extent Seymour was a trustee and
Price the
cestui que trust, that the trust continued after
the expiration of the five years unless Price subsequently
relinquished his claim, and that the land, which was to be
converted into money, should be regarded and treated in equity as
money. "The agreement," said Mr. Justice Swayne,
"that the property should be sold, and half of the profits paid
to Price, was a charge upon the property, and gave him a lien to
the extent of the amount to which he should be found entitled upon
the execution of the agreement, according to its terms."
In reply to the contention that Price had a complete remedy at
law, he further observed:
"An action at law, sounding in damages, may undoubtedly be
maintained in such cases for the breach of an express agreement by
the trustee, but this in no wise affects the right to proceed in
equity to enforce the trust and lien created by the contract. They
are concurrent remedies. Either which is preferred may be selected.
The remedy in equity is the better one. The right to resort to it
under the circumstances of this case admits of no doubt, either
upon principle or authority. Such, in our judgment, were the effect
and consequences of the contract."
The earlier English cases held broadly that where a vendor of
land had disabled himself from carrying out a contract to sell the
land to the plaintiff by a subsequent sale to another party, a
court of equity would entertain a bill as for a specific
performance, and award damages to the plaintiff. This was the
distinct ruling in
Denton v. Stewart, 1 Cox Ch.Cas. 258,
where the court directed an inquiry as to what damages the
plaintiff had sustained and decreed that such damages should be
paid by the defendant. A similar ruling was made in
Greenaway
v. Adams, 12 Ves. 395, although the Master of the Rolls
indicated a doubt with regard to the soundness of the principle
announced in
Denton v. Stewart. In
Gwillim v.
Stone, 14 Ves. 128, the bill asserted from the first that
defendant could not make a good title, and asked for compensation
by reason of the failure of the contract, and a decree was
Page 160 U. S. 181
made for delivering up the contract, without prejudice to an
action, instead of an inquiry before the master.
In
Todd v. Gee, 17 Ves. 273, the case of
Denton v.
Stewart was practically overruled by Lord Chancellor Eldon,
who held that the plaintiff in a bill for specific performance was
not entitled generally to satisfaction by way of damages for the
nonperformance, to be ascertained by an issue, or reference to a
master, the court saying
"that, except in very special cases, it is not the course of
proceeding in equity to file a bill for specific performance of an
agreement, praying, in the alternative, if it cannot be performed,
an issue or an inquiry before the master with a view to damages.
The plaintiff must take that remedy if he chooses it at law.
Generally (I do not say universally), he cannot have it in equity,
and this is not a case of exception."
This case was followed in
Ferguson v. Wilson, L.R. 2
Ch. 77, where the plaintiff prayed the specific performance of a
resolution passed by the board of directors of a railway company
under which he alleged that he was entitled to have a certain
number of shares allotted to him, and also prayed that if it should
appear that all the shares had been allotted to other shareholders,
the directors might indemnify him out of their own shares, or might
be charged with damages. All the shares having been allotted before
the filing of the bill, it was held that, as no remedy by way of
specific performance was possible, plaintiff's claim for damages
failed also.
The principle of these cases was also adopted by Chancellor Kent
in
Kempshall v. Stone, 5 Johns.Ch.193, which is strongly
relied upon by the appellees in this connection. In that case, the
defendant entered into an agreement with the plaintiff to sell and
convey him a lot of land, and after the time of performance had
elapsed, sold the land to a third person for a valuable
consideration without notice of the agreement. Plaintiff filed his
bill for a specific performance, which it was held could not be
decreed, the lands having passed into the hands of a
bona
fide purchaser without notice, and the court further held that
the plaintiff's remedy was at law for compensation in damages. In
this case, as well as in the English
Page 160 U. S. 182
cases above cited, there was no possible lien upon the land and
no trust in favor of the plaintiff which the court could execute,
and it was very properly held that his only remedy was at law.
But if the defendant has not wholly disabled himself from
carrying out the contract, he may be decreed to perform
specifically so much as he is still able to perform, and plaintiff
may recover damages for the residue. Thus, in
Burrow v.
Scammell, 19 Ch.Div. 175, when the defendant's title came to
be investigated, it was found that she was possessed of only a
moiety of the premises she had agreed to lease to the plaintiff,
the other moiety being vested in her son, a minor. She was decreed
to specifically perform so much of the contract as she was able to
perform, with an abatement of half the rent, and an inquiry as to
damages was refused only upon the ground that there was no evidence
that plaintiff had sustained any damages. The American cases are
also to the effect that where the defendant has only partially
disabled himself from carrying out the contract, the plaintiff may
be entitled to a specific performance so far as it can be enforced,
and may receive compensation in damages for the deficiency. 3
Pomeroy Eq.Juris. §§ 1405, 1407;
Bostwick v.
Beach, 103 N.Y. 414.
In the case under consideration, Mrs. Marvin had but partially
disabled herself from carrying out her contract with the plaintiff
according to its original terms by encumbering the property with
the trust deed in favor of White. Under such circumstances, the
plaintiff might have filed a bill for a specific performance
pro tanto, and obtained a decree for a conveyance of
one-half of the property to himself, subject to a moiety of the
trust deed, but we think he also had the option of treating the
whole property as subject to a lien in his favor and praying that
it be sold to satisfy his claim for half of its original value. He
would doubtless have a remedy at law to recover the value of his
services, as well as the moneys disbursed by him. This, however,
under the averments of his bill, would not be the amount to which
he would be justly entitled. It is possible that in an action at
law he might also recover a personal judgment against the estate
for one-half
Page 160 U. S. 183
the value of the property in question, but this is not the
complete and adequate remedy which a bill to enforce a trust in his
favor upon the property in dispute would afford to him, and we
think it is not beyond the power of a court of equity to entertain
a bill for this purpose.
Sullivan v. O'Neal, 66 Tex.
433.
2. Does the statute of frauds stand in the way of a decree in
his favor? As there was no contract in writing, plaintiff must
maintain his bill, if at all, upon the theory of a part
performance. He must maintain it, too, upon the same principles and
with the same cogency of proof as if it were in fact as well as in
substance a bill for a specific performance. In this connection,
the allegation is in effect that the plaintiff arranged with Mrs.
Marvin to pay half the cost of the lot and half the cost of
erecting a dwelling thereon, he to purchase the materials and
superintend the erection of the dwelling, and that each was to own
half the property; that he performed his contract in full; that she
not only never questioned that he had paid his half in full, but
stated to him and to mutual friends that he had paid in full, and
was jointly interested with her in the premises; that his ownership
of half of the premises was never disputed by her, but was openly
recognized, and that, when he requested a settlement, and that she
convey his half to him, she replied that she had provided for that
in her will, by which she gave him the entire property.
Admitting to the fullest extent the proposition that a mere
payment of the consideration in money is insufficient to remove the
bar of the statute, there is no doubt that such payment,
accompanied by an entry into possession under the contract, is such
a part performance as will support the bill. This Court so
expressly decided in the case of
Neale v.
Neale, 9 Wall. 1. And in
Brown v. Sutton,
129 U. S. 238, it
was held that where the defendant's intestate bought certain
property for the complainant under a promise made orally that he
would make over the title to her upon consideration that she should
take care of him during the remainder of his life, as she had done
in the past, there had been sufficient part performance of this
parol contract to take it out of the operation of the statute
Page 160 U. S. 184
of frauds and render it capable of being enforced by a decree
for specific performance. Similar cases of promises to convey
property upon the consideration of support are frequent in the
books.
Gupton v. Gupton, 47 Mo. 37;
Sutton v.
Hayden, 62 Mo. 101;
Hiatt v. Williams, 72 Mo. 214;
Watson v. Mahan, 20 Ind. 223;
Twiss v. George, 33
Mich. 253;
Warren v. Warren, 105 Ill. 568;
Patterson
v. Patterson, 13 Johns. 379.
The general principle to be extracted from the authorities is
that if the plaintiff, with the knowledge and consent of the
promisor, does acts pursuant to and in obvious reliance upon a
verbal agreement which so change the relations of the parties as to
render a restoration of their former condition impracticable, it is
a virtual fraud upon the part of the promisor to set up the statute
in defense and thus to receive to himself the benefit of the acts
done by the plaintiff while the latter is left to the chance of a
suit at law for the reimbursement of his outlays, or to an action
upon a
quantum meruit for the value of his services. In
discussing what are and what are not acts done in part performance
which will entitle the plaintiff to a decree in his favor, the
entry into possession of the land and the making of valuable
improvements thereon is treated by all the cases as one of the most
satisfactory evidences of part performance, and entitling plaintiff
to a decree in his favor. 3 Pomeroy Eq.Juris. § 1409; Fry on
Spec.Perf. § 585;
Wills v. Stradling, 3 Ves. 378;
Mundy v. Jolliffe, 5 My. & Cr. 167;
Williams v.
Evans, L.R. 19 Eq. 547.
Although there is no distinct allegation in this bill that the
plaintiff entered into possession, there is an allegation that the
land in question consisted of a lot 34 feet in width by 110 feet in
depth, and that the plaintiff gave his personal attention to the
selection and purchase of the materials for a dwelling house and
the erection of the same upon this lot, and paid $4,000 in
defraying the cost of the house -- facts which are inconsistent
with any other theory than that he took possession of the lot for
the purpose of erecting the house.
Whitsitt v. Trustees,
110 Ill. 125. If he subsequently, and after the completion of the
house, allowed Mrs.
Page 160 U. S. 185
Marvin to take possession of the lot in view of the intimate
relations between them, he lost no rights, as against her, which he
obtained by his original entry and the erection of the house. The
possession thus taken was evidently in performance of and in
reliance upon the original agreement with the owner, and we think,
taken in connection with the improvements made by him, it makes a
case of part performance sufficient to remove the bar of the
statute. His subsequent relinquishment of such possession was
evidently with no intention to abandon the interest he had already
acquired in the property.
Drum v. Stevens, 94 Ind.
181.
3. We are also of opinion that under the peculiar circumstances
of this case, the bill is not open to the defense of laches. It is
true, the advances were made at sundry times from 1879 to 1884, and
the bill was not filed until 1889, but the delay is sufficiently
accounted for by the intimate personal relations that had always
existed between the plaintiff and Mrs. Marvin and the unlimited
confidence he had reposed in her. It is alleged in this connection
that they had long lived together in the same house; that she had
treated him and spoken of him as a foster child; that from the time
the services were rendered until her death he had repeatedly urged
her to come to a settlement with him; that whenever the subject was
referred to, she acknowledged the justice of the claim and assured
him she had provided for him in her will, saying that she intended
the house to be his when she was done with it, and that it should
belong to them both while she lived; that on this account, he had
neglected to take measures for the enforcement of his rights, and
that he did not know until her death that she had failed to carry
out her promise to devise the entire property to him.
Dealing with a person who stood in this relation to him and with
whom he had always been upon friendly and even intimate terms, the
same diligence could not be expected of him as would have been if
he had been treating with a stranger. If, as he avers, she had
promised to leave him the entire property at her death, he may have
considered it to his advantage to await this contingency rather
than to pursue
Page 160 U. S. 186
her for half the property during her life. As she died in
February, 1889, and the bill was filed in October of the same year,
there can be no claim that, with reference to this event, he did
not act with sufficient promptness. The only circumstance that
occurred during the period of nine years from the time the contract
was made which was calculated to excite his suspicion that she did
not intend to carry out her alleged agreement was the execution of
a trust deed in favor of White, of which, however, there is nothing
in the bill to indicate that he had actual notice. While the record
of this trust deed would operate as constructive notice to
subsequent purchasers or encumbrancers of the property, it is at
least doubtful whether it would have the same effect as to one who
stood in plaintiff's relation to the property.
Howard Ins. Co.
v. Halsey, 8 N.Y. 271;
Bates v. Norcross, 14 Pick.
224;
James v. Brown, 11 Mich. 25;
Cooper v.
Bigly, 13 Mich 463;
Iglehart v. Crane, 42 Ill. 261;
Doolittle v. Cook, 75 Ill. 354.
The question of laches does not depend, as does the statute of
limitation, upon the fact that a certain definite time has elapsed
since the cause of action accrued, but whether, under all the
circumstances of the particular case, plaintiff is chargeable with
a want of due diligence in failing to institute proceedings before
he did. In this case, we think the delay is fully explained.
Gunton v. Carroll, 101 U. S. 426. It
is true that one of the parties to this alleged agreement has died,
and that the court has lost the benefit of her testimony with
regard to the alleged agreement. This, however, is a circumstance
to be considered by the court in weighing the evidence, rather than
an obstacle to the maintenance of the bill upon demurrer.
There are doubtless circumstances in the case which indicate at
least a difficulty of proof, if not to arouse a suspicion, that
perhaps the plaintiff may have overstated his case, but the pleader
in a bill in equity is not bound to state either the testimony or
facts which militate against his theory, but only to present his
case in the light most favorable to his own interests, and ask that
upon such presentation the court shall decide upon the sufficiency
of his bill.
Page 160 U. S. 187
4. We do not think the bill is open to the charge of
multifariousness. While the tenth paragraph sets out a verbal
agreement to convey an interest in land, and the prayer is for the
payment of a certain amount of money, the discrepancy is explained
by the fact that in view of the trust deed to White, a decree for a
half interest in the land will fail to satisfy plaintiff's claim,
and that his lien is claimed to extend not merely to the half
interest, but to the whole property, to satisfy her promise to
convey to him a moiety of its unencumbered value. Of course nothing
that is here said can affect the rights of White.
The decree of the court below is therefore reversed, and the
case remanded with directions to overrule the demurrer, and for
further proceedings in conformity with this opinion.
