Le Vee v. Le Vee , 93 Or. 370 ( 1919 )

BURNETT, J.

Substantially the only witness for the plaintiff is himself. He narrates that he and his mother came to this state and, after an unsuccessful venture on a larger farm they bought together the tract in dispute, taking title to themselves as' tenants in common; that they lived together on the land for several years, she doing the housework and otherwise assisting in the management of the place and the marketing of its products, and all went smoothly until he married. The old lady, feeling herself supplanted by the daughter-in-law, left, and the plaintiff, according to his story, provided for her sustenance at various places in Corvallis and finally the mother took up her abode at the Patton Home in Portland. He says that he paid her expenses at the rate of twenty dollars per month at all of these places, as well as during a trip she made to some of the eastern states on a visit.

No effort is made to account for the contract, if it was in writing, or for the deed, beyond its withdrawal from the bank. The plaintiff does not claim to have had a copy of the agreement, if there was one, so that the question really turns upon whether there is sufficient- evidence to prove a contract and, further, whether part performance has been shown sufficiently to support a decree compelling a conveyance.

As late as March 30, 1910, the plaintiff and his mother made the following agreement:

“Whereas, Chauncey Le Vee and Mary Le Vee are the owners and tenants in common of a certain 32.5 acre tract of land one mile north of Corvallis, and the said Mary Le Yee desires to go East, and it is arranged that said Chauncey Le Yee shall pay her $20.00 a month for her support, in consideration ofi which he is not to be charged with rent for the use of said land.

“Now, therefore, it is agreed between said Chauncey Le Yee and Mary Le Yee as follows: Said Chauncey Le Vee agrees to pay said Mary Le Vee the sum of $20.00 per month for her support, said money to be sent to her at such place whatever she may be residing, and in consideration of such payment, said Mary Le Vee agrees that so long as payments are kept up, said Chauneey Le Vee shall not be liable for payment of any rent for the use of said premises. Said Chauneey Le Vee further agree? to pay the taxes on said land.

“This agreement may be dissolved by either party hereto, at any time hereafter.

“In witness whereof, the parties hereto have hereunto set their hands and seals, in duplicate, this March 30th, 1910.

“ (Signed) Mary Le Vee. (Seal)

“ (Signed) .C. W. Le Vee. (Seal)

“In presence of:

“(Signed) E. E. Wilson.”

It is admitted that within six months after the probate of the will the plaintiff presented to the executor his claim for moneys advanced to ids mother for three years’ interest on her half of the mortgage, for taxes on her half of the realty, for funeral expenses and claims and other demands discharged by him, amounting in all to $1,955.

In Tonseth v. Larsen, 69 Or. 387 (138 Pac. 1080), Mr. Justice Bean quotes with approval from 36 Cyc. 659:

“Possession, in order to be an act of part performance, either alone or in connection with other acts, is subject to several requirements. First, it must have been taken in pursuance of the contract. Further, it must be exclusively referable to the contract; that is to say, it must be such a possession that an outsider, knowing all the circumstances attending it, save only the one fact, the alleged contract, would naturally and reasonably infer that some contract existed relating to the land of the same general nature as the contract alleged.”

1. In other words, there must be such a change of relation between the parties as would challenge the attention of anyone seeing the change and would indicate that some contract had been made. The rule is thus stated in the syllabus to Roberts v. Templeton, 48 Or. 65 (80 Pac. 481, 3 L. R. A. (N. S.) 790, note):

“Where a cotenant with a part owner of real property claims specific performance of an oral contract of purchase with another owner the proof must be clear that possession was taken under the oral agreement to'constitute such a part performance as to avoid the statute of frauds.”

2, 3. Everything which the plaintiff claims he did in pursuance of the alleged contract, when viewed by an observer, is referable with equal force to the tenancy in common existing between the parties. No visible change was made respecting the possession of the land. Both the plaintiff and his mother lived upon it and operated it just as such holders of the title ordinarily would do. The plaintiff probably paid out money for his mother’s support, but it was apparently derived from the proceeds of the crops of the land. Besides the fact that his acts already alluded to were consistent with the tenancy in common and contained nothing referring them'exclusively to a contract, his other acts are utterly inconsistent with the idea that he had an agreement with his mother to buy the land. The quoted'contract of March 30, 1910, is practically a lease which would not have been executed if he was holding the land as a purchaser. His act of presenting to the executor his claim against her estate for the items mentioned is likewise inconsistent with the theory that he had a contract to buy the land in consideration of those very payments. The evidence is not of that degree of clearness and certainty required when it is sought to overcome the effect of the statute of frauds. The general rule is that the plaintiff must prove the agreement as well as his part performance of it, clearly and unequivocally by the preponderance of the evidence. If the testimony taken altogether is equivocal in its effect, so that it is left uncertain which is the true solution of the question, the plaintiff has failed to make his case by the preponderance of the testimony. It presents a situation analogous to what was said by Mr. Chief Justice McBride in Spain v. Oregon-Washington R. & N. Co., 78 Or. 355 (153 Pac. 470, Ann. Cas. 1917E, 1104):

“When the evidence leaves the case in such a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should be withdrawn from their consideration.”

In short, by reason of the fact that all the things said to have been done by the plaintiff are easily referable to the relation of tenants in common existing between himself and his mother, and that the act of his taking what was substantially a lease of the premises on March 30, 1910, and his presenting a claim to her administrator are contradictory of his theory of contract, he has failed to make a case preponderating in effect over that made by the defendants. The case presented is not like Woods v. Dunn, 81 Or. 457 (159 Pac. 1158). There the will made by the former ownei of the land was itself a writing sufficient to satisfy the statute of frauds. Besides this, the agreement was otherwise amply proved together with its unequivocal part performance by the plaintiff.

Stalker v. Stalker, 78 Or. 291 (153 Pac. 52), cited by the plaintiff, was a case where a member of the Church of Jesus Christ of Latter-day Saints had contracted a plural marriage, which having been declared unlawful, he placed the plural wife on a piece of land which he bought for her for a home and left her in possession, going into another state. The agreement to give it to her for a home in settlement of her probable demands against him for support was clearly proved and she remained in the exclusive possession of the premises, while he never appeared ilpon them afterwards. Further, his writings substantially declared the true contractual relation.

Kelley v. Devin, 65 Or. 211 (132 Pac. 535), was a case where a father contracted with his son, who was. long past the age of majority, to the effect that if the son would participate in the management of his father’s property during the life of the latter, he would devise to him an undivided half of all his estate. This agreement was clearly proved by at least three disinterested witnesses and there was such a change in the management of the father’s affairs by the par-' ticipation of the son therein that anyone seeing the difference would be put upon inquiry about a contract, as that would be the only reasonable explanation of the change in management.

Sprague v. Jessup, 48 Or. 211 (83 Pac. 145, 84 Pac. 802, 4 L. R. A. (N. S.). 410), involved a contract between strangers evidenced by the purchaser’s taking possession of the realty to the utter exclusion of the seller, besides which, part of the purchase price had been paid and a memorandum in writing signed by the seller indicated that the payment was made on account of the purchase price. In their facts and circumstances all these cases cited .by the plaintiff differ widely from the one at bar and are not controlling here.

On petition for rehearing.

Denied. Messrs. McFadden & Glarhe, for the petition. Messrs. Hewitt S Sox, contra.

4, 5. The statute of frauds is stringent in its provisions, and to avoid its effect the testimony must be clear and explicit, showing a state of facts referable exclusively to the contract pleaded. This condition has not been fulfilled in the present instance, wherefore the decree of the Circuit Court, so far as it affects the parties who have appealed and contested the complaint, must be reversed. The decree must stand as to the other defendants. Modified.

McBride, C. J., and Benson and Harris, JJ., concur.