Marshall & Ilsley Bank v. Schuerbrock

217 N.W. 416, 195 Wis. 203, 1928 Wisc. LEXIS 54

• Court: Wisconsin Supreme Court
• Decided: March 6, 1928
• Status: Published

Opinion

The following opinion was filed January 10, 1928:

Rosenberry, J.

There are one or two preliminary questions which must be disposed of before proceeding to the case upon its merits. It is first argued that the court was in error in taking the advisory verdict from the jury. This practice is so well established that we shall do no more than to refer to some of the cases. Neff v. Barber, 165 Wis. 503, 162 N. W. 667; Callanan v. Judd, 23 Wis. 343. However, such verdicts are merely advisory and are not conclusive upon the court. The court may set them aside or give judgment contrary to the verdict if the evidence warrants such a judgment. Magoon v. Reber, 76 Wis. 392, 45 N. W. 112; Hennig v. Iron Ridge C. Co. 186 Wis. 499, 202 N. W. 466.

Where findings are made and the findings conflict with the verdict, the findings supersede and set aside the verdict. Gersich v. Starich, 177 Wis. 507, 188 N. W. 492.

A brief reference to applicable legal principles will be helpful in a solution of the questions presented by the record. Except as the contract being an oral one is taken out of the statute of frauds by so-called part performance, it is void and ineffectual for any purpose. As to what constitutes sufficient part performance to take an oral contract to convey land out of the statute of frauds there is great conflict in the authorities. In England it is held that possession alone is sufficient. It is so'held in some states. Taking possession of the purchased premises with the consent of the vendor and payment of the whole or a considerable portion of the purchase price is generally considered sufficient part performance. For a review and classification of the cases by states see Pomeroy on Specific Performance (3d ed.) § 115 et seq. and notes.

In Wisconsin the general rule is that equity will not enforce specific performance of an oral'agreement to convey land although there has been part performance by the purchaser unless the purchaser has been put in possession, except where the vendor’s refusal to perform will work a fraud upon the purchaser and the purchaser has no adequate remedy at law. Henrikson v. Henrikson, 143 Wis. 314, 127 N. W. 962; Papenthien v. Coerper, 184 Wis. 156, 198 N. W. 391; Krueger v. Groth, 190 Wis. 387, 209 N. W. 772.

There is no evidence that a conveyance was ever demanded by the defendant Bertha Schuerbrock or any evidence that the deceased ever declined in any way to convey. The record is barren upon that subject. In order to entitle the defendant Bertha to specific performance in this case there must have been part payment coupled with possession. Scheuer v. Cochem, 126 Wis. 209, 105 N. W. 573.

It is also well established that where specific enforcement of a parol contract is sought, the contract must be fully made, completed in all its terms except the writing required by the statute. J. L. Gates L. Co. v. Ostrander, 124 Wis. 287, 102 N. W. 558; Bowen v. Warner, 1 Pin. 600; Blanchard v. McDougal, 6 Wis. 167; Eckel v. Bostwick, 88 Wis. 493, 60 N. W. 784.

Likewise it must appear that the acts of alleged performance must be obviously and solely done in reliance upon and under the obligation of an established parol contract. Park v. M., St. P. & S. S. M. R. Co. 114 Wis. 347, 89 N. W. 532; Roberts v. Templeton, 48 Oreg. 65, 80 Pac. 481, 3 L. R. A. n. s. 790, and note.

It is well established in this state that an oral agreement to devise lands is not taken out of the statute by the performance of services in reliance upon if, although they be of a personal nature. Rodman v. Rodman, 112 Wis. 378, 88 N. W. 218, and cases cited.

Upon principle the same rule must apply to a contract to convey, and such is the great weight of authority except in those cases where a denial of the right to specific performance would operate as a hardship and fráud upon the party claiming the right. S Pomeroy, Eq. Jur. (2d ed.) p. 5022, § 2248.

This court recognized that there is a division o'f authority, and in Rodman v. Rodman, 112 Wis. 378, 88 N. W. 218, deliberately adopted the rule that performance of services in reliance upon the oral agreement does not constitute a sufficient consideration to warrant the intervention of a court of equity. Grindling v. Reyhl, 149 Mich. 641, 113 N. W. 290, 15 L. R. A. n. s. 466. Not only must the contract be complete, definite, and certain, but the facts relied upon to take the case out of the statute must be established by clear, satisfactory, and convincing evidence. Hibbert v. Mackinnon (corporate stock), 79 Wis. 673, 49 N. W. 21; Hadfield v. Skelton (land), 69 Wis. 460, 34 N. W. 397.

In McKee v. Higbee, 180 Mo. 263, 298, 79 S. W. 407, the reasons for the rule are stated at some length and a number of cases cited and reviewed. The following language is quoted with approval from Kinney v. Murray, 170 Mo. 674, 701, 71 S. W. 197:

“When, as in this case, and in consonance with this doctrine, a court of equity is called upon to establish and enforce a contract of this character [parol contract within the statute] in the teeth of the statute of wills, and of the statute of frauds and perjuries, and to set aside the disposition of valuable property made in conformity with the requirements of those statutes, there is devolved upon the chancellor the gravest responsibility, perhaps, that ever attaches to his high office. And nothing' short of the inherent justice of the claim, supported by evidence that can be relied upon with the utmost confidence, proving the existence of the contract, its terms and conditions and a substantial and meritorious compliance therewith, with such certainty and definiteness as to leave no room for reasonable doubt, can ever justify the exercise of such an extraordinary prerogative.”

Wisconsin has not adopted the rule that part performance must be established beyond a reasonable doubt, but the cases are cited to show that the rule adopted here being.less stringent than in many jurisdictions, both upon reason and authority it ought not to be further relaxed. 5 Wigmore, Evidence, p. 474, § 2498; 5 Pomeroy, Eq. Jur. (2d ed.) p. 5032, § 2252.

With these legal principles in mind we shall first consider the proof as to the possession relied upon as part performance. For twent3^-nine years prior to the purchase of the premises in March, 1920, the deceased had been a member of the Schuerbrock family. He had moved with them to the various places which they had occupied, had always sat at the table, lived in the family living room, had a bedroom, and in all other respects was treated as a member of the family. Upon the purchase of the premises in question in 1920 the entire family moved into the premises and there occupied them in exactly the same way that -they had occupied the houses in which they had previously lived. The defendant Bertha Schuerbrock knew at the time of the purchase or shortly thereafter that the title to the premises had been taken in the name of the deceased; that the premises were assessed in his name and were insured in his name, and while she made some minor improvements such as the building of a small sidewalk, setting out of some shrubbery, repair of plumbing, and matters of that kind, the defendant Bertha in no way altered her position or did anything in the way of making improvements which would warrant a claim that she will be defrauded or any injustice done her if specific performance be denied. The rental value of the premises, $75 a month, in any one year far exceeded the value of all improvements put upon the premises by her during the six years. There is nothing to show any change in the relation of the parties except casual statements to the effect that the deceased considered the house to belong to his sister Bertha, that it was her home, and declarations of like character, which were quite as consistent with their joint occupancy of the premises as a home for the entire family, including the deceased, as with any intention on his part to vest her with an exclusive possession. It is clear from the authorities that possession must be open, exclusive, notorious, and referable solely to the contract, and this fact, as well as. other facts relied upon to constitute part performance, must be established by clear and satisfactory evidence. Price v. Lloyd, 31 Utah, 86, 86 Pac. 767, 8 L. R. A. n. s. 870, and note; 25 Ruling Case Law, p. 262, § 63; Scheuer v. Cochem, 126 Wis. 209, 105 N. W. 573.

In Rodman v. Rodman, 112 Wis. 378, 88 N. W. 218, it was held that where the promisor under a void oral contract to convey was in possession of the premises and the promisee was also put in possession, the possession of the promisee was subordinate to that of the holder of the legal title. See, also, Perkins v. Perkins, 173 Wis. 421, 180 N. W. 334, 181 N. W. 812. It is not necessary to say that the possession of a true owner might not in some way be made subordinate to that of a claimant under an oral contract, but it is considered that evidence consisting of assertions made by the deceased in the course of casual conversation, or declarations made by him to the claimant at or about the time the premises were purchased, where the situation of the parties remained unchanged, is insufficient for that purpose.

It is argued that the fact that the defendant Bertha and her family occupied the greater part of the premises and the deceased confined himself principally to the occupancy of a room is sufficient evidence to sustain the finding that the defendant Bertha had the exclusive possession. The evidence establishes beyond controversy that the deceased occupied the premises in common with other members of the family. He was not required to confine himself to the room in which he slept, but ate at the table, lived in the living room, and in all other respects conducted himself as a member of the family and not as a roomer and boarder. The defendant Bertha managed the household affairs as she always had done.

If the evidence offered by the defendant is true, the deceased had for nearly thirty years been promising to buy the defendant Bertha a home, yet when he did buy a house suitable for a home he took the title in his own name, not by mistake but deliberately to the knowledge of all parties. In the circumstances in which he was situated he took all the possession of the premises that he would naturally take. His conduct was perfectly consistent with his desire to purchase a house in which he and his sister’s family might make their home as it had been made in previous houses occupied by them. The evidence falls far short of establishing by clear and satisfactory proof such open, notorious, and exclusive possession as is required to show part performance so as to avoid the effect of the statute of frauds.

It is also considered that the contract to convey or to purchase a home for the defendant Bertha is not established with that definiteness and certainty necessary to, entitle the defendant Bertha to a decree of specific performance. The promise of the deceased to purchase a home at some future time in fulfilment of his obligations to her, nothing being specified as to the kind of a home to be purchased, its location, value, or anything else, is too indefinite and hazy to form the basis of a claim to specific performance. Sipes v. Decker, 102 Wis. 588, 78 N. W. 769. In addition to that, the fact that in the face of all the circumstances he took the title in his own name to the knowledge of the defendant Bertha, without» any protest on her part or claim that the transaction should have been otherwise than it was, contradicts in the most unequivocal manner the claim that the premises wer'e to be hers, and indicates an acquiescence on her part in the provision that her brother had made for her, which was apparently that he and the Schuerbrock family occupy the premises together as they had their previous home. The case is argued here as if evidence sufficient to rebut any possible presumption that services rendered by the defendant Bertha might have been gratuitous is sufficient to form a basis for specific performance. As already indicated, the contract must be definite, certain, and be established by proof that is clear, satisfactory, and unequivocal. In this case the terms of the contract are indefinite and uncertain and rest upon doubtful and unsatisfactory proof.

Some effort is made to sustain the finding on the theory that the deceased made a parol gift of the premises to the defendant Bertha. A parol gift, in order to be effective and not be within the statute, must be accompanied by possession, and the person to whom it is made must have made improvements or have done some other acts in reliance upon the gift, and the situation- must be such that great injustice would be done the donee if the title is not passed. Hawkes v. Slight, 110 Wis. 125, 85 N. W. 721. No such circumstances appear in this case. The rental value of the premises was fixed by competent witnesses at $75 per month, which far exceeded the value of any improvements made upon the premises and any board or other services rendered by the defendant Bertha to the deceased. Bevington v. Bevington, 133 Iowa, 351, 110 N. W. 840, 9 L. R. A. n. s. 508, note, and cases cited; 12 Ruling Case Law, p. 939, § 16; Ellis v. Cary, 74 Wis. 176, 42 N. W. 252. No injustice, fraud, or wrong will be worked as to the defendant Bertha by reason of anything that she did in reliance upon the oral gift of the premises in 1920.

Some question is raised as to the competency of the witnesses in this case. The court apparently admitted all testimony offered by the defendants, regardless of whether the same related to a transaction with the deceased or not. If the testimony given by incompetent witnesses in' this case were stricken from the record, very little would remain in support of either the verdict or the findings. Objection was made at every point. The court failed to pass on the objections. While wé must assume that the court disregarded evidence of incompetent witnesses and evidence not properly admissible, the course pursued leaves the record in a state of confusion. We shall not attempt the almost impossible task of separating the evidence given by incompetent witnesses from evidence properly offered and received. If it were all properly received it would fall far short of sustaining the contention of the defendants.

It is claimed by the defendants and found by the court that the deceased lived in the Schuerbrock family for thirty-five years and during the entire time never contributed a single cent toward the support of the family or in any way compensated the Schuerbrocks otherwise than by the alleged gift of the premises in question. It appears that the children from the time they began to be wage earners made contributions to the household, as also did the sister, Marie Bartels, a woman three years the senior of the deceased. Apparently every one connected with the household except the deceased bore some'share of the common burden. We regard the testimony in support of this claim as so opposed to human experience and to all the established facts in this case as to be absolutely incredible and unworthy of belief. The deceased at first appears to have been dissipated, but beginning three months after he came to the Schuerbrock house he earned a salary in excess of $9 a week continually for seventeen years. The amount earned by him during the latter part of the period he- was employed at Steinmeyer’s is not established, but it is conceded that he was a competent, able business man, and no doubt he' received a salary commensurate with his ability. It is admitted by the defendant that about 1903 or 1904 the deceased reformed; that thereafter he commenced to accumulate property; that in 1910 when he went into business he had accumulated $4,000, and, as already stated, he died possessed of an estate worth more than $30,000, including the house. If it be true that the deceased, who for twenty years at least was amply able to contribute to the family income, imposed himself upon the generosity of the Schuerbrock family for thirty-five years without contributing a single cent, it would show him to be an ingrate bereft of those sentiments which are common to mankind, whereas the evidence shows without contradiction that he was of an opposite nature and that he 'was at all times solicitous for the welfare of his sister, and not only willing but anxious to reimburse her. If. the testimony is not wholly incredible it falls short of that certainty and lacks that convincing power necessary to establish pk'r-t performance on the part of the defendants.

„ That the deceased was mindful of his obligations to the defendant Bertha and her family is incontestably established .by the fact that shortly prior ,to his death he attempted to make a will and dispose of his effects for the benefit of his sister and some members of her family. There is not a scintilla of evidence in the case that he ever at any time or in any manner repudiated his obligations to the Schuerbrock family, but on the contrary it appears that he at all times acknowledged them. It is a noteworthy fact that in this very stubbornly contested case, where a bit of corroborating evidence would have been so valuable, there is not produced a single line of writing in the shape of a letter or receipted bill or in any other form that substantiates the testimony given by interested witnesses. A careful consideration of the evidence leads us irresistibly to the conclusion that the claim of this family that the deceased never contributed a single cent to the family purse, or shared to any extent the family burden, or compensated his sister in any way for services rendered to him, is untenable and opposed to all reasonable probabilities in the case. Courts are not bound by testimony so opposed to the common knowledge and experience of mankind and contradicted by all the conceded facts in the case. Samulski v. Menasha P. Co. 147 Wis. 285, 133 N. W. 142. See, also, note in 8 A. L. R. 796.

We are not unmindful of the weight which should be given to the findings of the trier of the facts. We cannot, however, escape the conclusion that the trial court gave to the findings of the jury more weight than they were entitled to. Applying to the case the rule that a verdict óf a jury in a jury case is conclusive if there is any credible evidence to support it, it is considered that the evidence in this case would not support a verdict in favor of defendants. The improbabilities in the case do not rest entirely upon the conduct of the deceased. It is most unlikely at least that a family situated as the Schuerbrock family was would have maintained gratuitously a relative to whom they were under no legal obligation without any compensation whatever, he being able to pay, for a period of thirty-five years. One need not have had very much experience of life to know that while such a state of affairs might exist it is highly improbable, particularly in this family where every other member of it made an appropriate response to the needs of the family and contributed to the family support.

For the reasons already stated, the defendants are not entitled to an accounting or an equitable lien upon the premises for any advances made by them on account of improvements or payment of taxes. It appears from the testimony that the defendant Bertha has filed a claim against the estate of the deceased for some $20,000, Marie Bartels, sister of the deceased, has filed a claim for $6,000, and Adele Schuerbrock has filed a claim for $1,500. The county court has jurisdiction of these claims and is possessed of ample power to protect and safeguard the interests of the claimants, whatever they may be.

By the Court. — Judgment appealed from is reversed, and cause remanded with directions to enter judgment for the plaintiffs as prayed in the complaint.

A motion for a rehearing was denied, with $25 costs, on March 6, 1928.