Ward v. Ward

I concur. I think, however, that it is not clear on what theory the lower court arrived at its judgment. While the decision affirms the judgment, I do not think that some of the questions raised by the appeal are sufficiently delineated to ascertain just what legal propositions we lay down in the decision.

The original complaint was to quiet title and for ejectment. The answer introduced the will which it claimed was in effect a contract. The reply set up that if a contract, it was broken by defendant. A complaint to quiet title oft-times merely sets off the litigation. The issues which grow out of it as developed by the pleadings may present purely legal, purely equitable, or a mixture of legal and equitable issues. Whether an action to quiet title is, therefore, a legal or an equitable action depends largely on what sort of issues are raised in the action. In this case, before the amendment asking rescission (which amendment was made after the case was submitted and memorandum decision handed down), the pleadings raised only legal issues. The defendant set up a contract to prevent his ejectment. The plaintiff claimed breach of contract as a means of avoiding the effect of the will. The court evidently did not go so far as to declare the will a nullity, that is, rescind the contract, but in finding that there was a breach by defendant which permitted plaintiff to avoid the effect of the contract, it in effect amounted to such declaration as far as defendant was concerned. Yet the judgment of the court does not go any further than is required by the legal issues. Judgment of ejectment in an action of ejectment is a judgment rendered by a law court, although it has the quality of an equitable remedy. In consequence of what has been above said, I do not see that the judgment is one founded on the amended complaint for rescission, but on the issues as originally framed. Even if conceived of as being founded on and responsive to the amended complaint which is in equity and thus brings to this court the duty to weigh the evidence, I do not think we can say that the evidence below preponderates against the conclusion of the court there reached. Even in equity cases we do not reverse where after reading the record we have doubt as to what conclusion of fact should be reached. We then adhere to the lower court's conclusion. I think the court might have reached the conclusion that the contract by Hyrum Ward was substantially performed, that any infractions were minor, that the mother had by her conduct in permitting Hyrum's family after a number of years to take from the produce raised food for his family before division of the net proceeds, acquiesced in the same or put such interpretation on their contract. But I cannot say that the conclusion to the contrary is not equally or more tenable. Consequently, even though we consider this an equitable action. I do not think the court's findings in those regards can be disturbed. I shall at the end of this opinion have a word to contribute regarding defendant's assertion that the amendment to the complaint constituted a departure. But as above intimated, I think the amendment in view of the decree was needless.

The effect of Mr. Justice Moffat's decision is to hold that the defendant has committed such breach as to permit the plaintiff to revoke. However, the court found — and was not required to go further in its findings — that the contract had been violated and by reason of the violations the plaintiff could terminate the same and eject the defendant. It did not require the equitable action of rescission to accomplish that. There being a substantial breach, the plaintiff could herself revoke and treat defendant as an interloper on the land. The lower court was correct in holding that. However, I believe the matter should be clarified for the benefit of the litigants and to avoid another lawsuit. The ambiguity of the findings of the trial court should not be carried into this court's opinion. This court should decide how much of the findings of the court below is supportable. If the opinion is left vague in this regard, we still leave unsettled the questions of whether the "irrevocable will" is still in force, and whether the defendant is entitled thereunder to the property subject to the terms therein stated. The mother (plaintiff) is now deceased and that question becomes important. The court's opinion decides that the amended complaint was properly received and that plaintiff should have possession. But between these two questions are five additional questions. Not to consider these would be like arriving at an answer in a mathematical problem without revealing the successive steps leading to that answer.

The findings of fact, paragraph 5 (found in the main opinion), set out the terms of an oral agreement made subsequent to defendant's coming into plaintiff's home — terms not mentioned in the will. While defendant assigns as error the finding of the court that there was an oral agreement and the terms of it, I think the evidence sufficient to support said finding. The difficult question is as to the relationship between the oral agreement and the will. The five questions may be posed as follows:

(1) Is the so-called "irrevocable will" anything more than a contract? (2) Should the oral agreement be considered a part of the written contract-will or a separate agreement? (3) Is the oral agreement as to terms of the tenancy within the statute of frauds and therefore not specifically enforcible? (4) Is there such a breach of the oral agreement, or depending on the answer to question No. (2), oral part of the agreement, as prevents specific performance in behalf of defendant? (5) Has there been a breach of the contract-will which permits revocation?

(1) Is the so-called "irrevocable will" anything more than a contract? The plaintiff agreed to do certain things in consideration of defendant's moving to Willard and caring for and operating the farm. The fact that defendant could terminate the arrangement at will did not prevent the contract's being valid. By this failure it became what is called an unilateral contract, i.e., the promisor is bound if the other party performs his part of the agreement. Williston on Contracts, (Rev. Ed.) Secs. 13, 60, 60A, 61. Such an arrangement constitutes a valid contract enforcible by the party who renders the optional performance. Williston, Sec. 1441; 25 R.C.L. 235, Sec. 37; 1 Ann. Cas. 991, note; 118 Am. St. Rep. 592, note.

But this is no more than a contract to leave property at death if the prospective devisee will perform certain conditions. Performance of the conditions gives rise to a right of action for specific performance or damages. Thomas v. Johnson, 55 Utah 424,186 P. 437; Roy v. Pos, 183 Cal. 359, 191 P. 542;Aldrich v. Aldrich, 287 Ill. 213, 122 N.E. 472; Colby v.Street, 151 Minn. 25, 185 N.W. 954; Woodworth v. Porter,224 Mich. 470, 194 N.W. 1015; Woods v. Dunn, 81 Or. 457,159 P. 1158; Williston on Contracts, Sec. 1421. Failure to perform makes the arrangement ineffective. The devisor is not bound and is free to make other disposition of the property.

Counsel for defendant contends that the will creates an irrevocable trust. The plaintiff contends that it gave only an option to buy at plaintiff's death and then subject to payment of specified amounts to the sisters. By the terms of the will itself no irrevocable trust is created. The plaintiff did not constitute herself as a trustee. What defendant apparently means is that the will together with defendant's compliance with his part of the bargain gave defendant a right to require the court to impose a trust on the property out of the declarations of the will. Thus, the property, held in trust by such judicial decree, would put it out of reach of plaintiff to alienate and thus deprive defendant of the benefits of his bargain if he performed his end. This is a species of specific performance and of course the trust would have to depend on the continued performance by defendant of his part of the contract. But whether it is conceived that the will gives a right to go before a court and have a trust imposed on the property or whether it grants an option to buy at the time of plaintiff's death, irrevocable as long as defendant performs, primarily depends on whether defendant has performed the contract. This leads us directly into the question of what was the contract.

(2) Was the oral agreement a part of the written contract-will or was it a separate agreement? If it is not decided whether there were two contracts or one, the defendant will be free to contend that the decision of this case ousts him from possession under the oral agreement only; that the will refers only to management and operation; that he has never violated the precedent conditions of the will; that he has always been ready and willing to perform and remains so, but was prevented from performing by the plaintiff herein and the plaintiff's breach cannot be charged to defendant; and that, therefore, the option under the will is still alive and he elects to exercise it. For this reason I think the question should be decided. Furthermore, if the agreements are separate, the discussions about the two should be separate because one has been breached and the other is too vague to be enforcible. Indeed, if the two are separate, only the oral agreement is pertinent to the action for possession since by that the defendant claims the right of occupancy. I think it was one contract. The oral agreement filled in the detail of the written contract-will. This was apparent by the understanding of the parties and implicit in the findings and conclusions of the trial court.

The memorandum opinion of the trial court states in part as follows:

"Furthermore, it appears from the evidence, that the relationship of the party [sic] have become so unbearable to each that it would be extremely inequitable to compel the plaintiff to carry on the relationship as it has heretofore existed, merely for the sake of affording to her son an option for the purchasing of the property at her death."

Carrying on this relationship was a part of the oral agreement, and yet the trial court evidently understood that disrupting the oral agreement would disrupt the option, in other words, that the contract-will would not stand if the oral agreement were knocked out. That this was the view of the trial court is made more certain from a consideration of Finding of Fact No. 5, first paragraph, also second paragraph reading:

"* * * at the time of the making of said oral lease and as a part of their general understanding and agreement. * * *"

This court would only be carrying out the intentions of the parties and the understanding of the trial court if it treated the oral agreement and the written will as one contract.

(3) Is the oral part of the agreement as to the terms of tenancy within the statute of frauds and therefore not specifically enforcible? The defendant-appellant in his answer alleged the agreement entitling him to possession. Respondent set up the statute of frauds as making the oral portions of the agreement unenforcible and also offered proof of breach of those provisions. It might be unnecessary to decide the statute of frauds question if it be decided that there was a breach of the oral provisions which would none the less prevent enforcement.

The will recites: "* * * in consideration of my son J.H. Ward's return to Willard to operate the farm for me during my lifetime * * *", and further: "In view of the fact that this will is being made in consideration of my son's caring for said property during my lifetime. * * *" The oral agreement covered relationships over the same period and was therefore for the lifetime of the plaintiff. An agreement to lease during the lifetime of the lessor is not within the statute of frauds since the lessor may die in less than a year and the agreement be wholly performed and terminated. Johnson v. Johnson, 31 Utah 408,88 P. 230; Betts v. Betts, Tex. Civ. App. 220 S.W. 575;See v. See, Mo. Sup., 237 S.W. 795. The rule is the same as where there is a promise to make payments during the payor's life, or keep someone for life. Moon v. Gilliam,187 Ark. 581, 61 S.W.2d 64; Fidelity Union Trust Co. v. Reeves,96 N.J. Eq. 490, 125 A. 582, affirmed 98 N.J. Eq. 412, 129 A. 922;Dixon v. Lamson, 242 Mass. 129, 136 N.E. 346.

The contrary finding of the trial court in Finding of Fact No. 6 was erroneous but immaterial because of our decision that there was a breach of the contract.

Appellant cites cases where part performance made enforcible agreements to devise property which would otherwise have been void. If there had been no will in the case at bar, those cases would be applicable, but here, all the testamentary provisions of any agreements between these parties were in the written will. And the agreements in so far as they related to tenancy and possession were not within the statute of frauds because of the possibility of performance within a year.

(4) Was there such a breach of the oral part of the agreement as prevents specific performance in behalf of defendant? In Finding of Fact No. 6 the trial court found as breaches of the occupancy agreement that the defendant and his family had not treated the plaintiff with the required respect and that he had failed to divide the crops as agreed to. There is evidence to support these findings. A party cannot have specific performance of the agreement he has failed to perform. Cummings v.Nielson, 46 Utah 294, 150 P. 295; Galluchat v. Pittman, D.C., 288 F. 917, 925, affirmed without opinion 4 Cir., 288 F. 928; Woodard v. Stowell, Mo. Sup., 222 S.W. 815; Ball v. Brooks, Sup., 173 N.Y.S. 746; Roy v.Pos, supra; Mitchell v. White, 295 Ill. 135, 128 N.E. 803;Enkema v. McIntyre, 136 Minn. 293, 161 N.W. 587, 2 A.L.R. 411.

(5) Has there been a breach of the contract-will which has made it revocable and in fact revoked it if there be a subsequent will? The answer to this question has been indicated. If the oral and written agreements are in reality one, failure of performance as to the oral agreement is a substantial breach and failure of performance as to the whole. Plaintiff would then be free to treat the contract as broken and therefore terminated.

Calling a will "irrevocable" does not make it so. Bates v.Hacking, 29 R.I. 1, 68 A. 622, 14 L.R.A., N.S., 937; 1 Jarman on Wills, Sec. Ed., p. 30; 1 Page on Wills, (2d Ed.) p. 105; 69 A.L.R. 208; 3 A.L.R. 172; 28 R.C.L. 168. If based on a contract it is irrevocable without a breach of contract for which specific performance might lie so long, and only so long, as the person to whom the property is to go lives up to his part of the agreement.Andrews v. Aikens, 44 Idaho 797, 260 P. 423, 69 A.L.R. 8, 57-67, 109-115, and cases there cited.

The appellant contends that there was a departure. If the oral understanding and the contract-will are considered as two separate contracts the defendant might have a more tenable argument because it might then be contended that the amended complaint filed after the evidence was in, set up a new cause of action in that it set out the making of the will and asked to have it revoked whilst in the original complaint ejectment only was asked. But at all events, Stevens Wallis v. GoldenPorphyry Mines Co., 81 Utah 414, 18 P.2d 903, must be conclusive of this question. The writer questions the correctness of that opinion. But if it is the law certainly the change made in the amended complaint in this case was far less drastic and definitely not a change in the cause of action as compared to the variance in the Porphyry Mines Company Case. In the latter case the plaintiff alleged a contract between itself and defendant. The proof showed no such contract had ever been made between them but that defendant had contracted with one Meldrum for the latter to carry on a sales campaign. The latter was to cause a prospectus to be printed. He, and not the defendant, contracted with the plaintiff for the printing of the prospectus. The defendant owed Meldrum money for his services; Meldrum owed plaintiff money for printing. Meldrum gave plaintiff an order on defendant for money owing him, Meldrum. Defendant accepted the order. It was held that this proof, showing no contract for printing between plaintiff and defendant but acceptance by defendant of an order on it by Meldrum to pay plaintiff, supported the allegations of the complaint that there was a contract for printing between plaintiff and defendant. Certainly, if probata followed allegata in the Porphyry Mines Company Case so as not to work a variance, a fortiori, in this case there is no departure.

For the reasons outlined in this opinion, I concur.