Ruddle v. Ruddle

101 S.E.2d 440, 143 W. Va. 83, 1957 W. Va. LEXIS 8

• Court: West Virginia Supreme Court
• Decided: October 22, 1957
• Docket: No. 10882
• Status: Published

Opinions

Riley, President:

The appellant, Hazel M. Ruddle, hereinafter designated as the plaintiff, brought this suit against Jessie Ruddle, her mother-in-law, and Ona D. Ruddle, her father-in-law, hereinafter designated as defendants, to enforce specific performance of an alleged oral promise of the defendants to convey to her a one-acre tract of land. Plaintiff’s husband, Hansel Ruddle, died before this suit for specific performance was brought, and, while the suit was pending, Ona D. Ruddle died intestate on February 20,1956. Thereupon the suit was revived in the names of Hazel M. Ruddle, Jessie Ruddle, as administratrix of the estate of Ona D. Ruddle, deceased, Ñola Vandevander and Wilda Kimble, the heirs of the decedent, Ona D. Ruddle.

The plaintiff is the widow of Hansel Ruddle, deceased, the latter being the late son of the original defendants in this suit. The plaintiff appeals from a final decree of the Circuit Court of Pendleton County refusing specific performance, as prayed for in her bill of complaint.

In her bill of complaint plaintiff alleges that her late husband’s parents, Ona D. Ruddle and Jessie Ruddle, who were the joint owners of a large farm situated in Pendle-ton County, had agreed to convey to her and her late husband a one-acre tract of their farm, if plaintiff and her late husband would build a house on the tract of land promised to be conveyed.

In this record it is plaintiff’s position that she and her late husband were induced by the promise of Ona D. Ruddle and Jessie Ruddle, to enter into exclusive possession of the one-acre tract of land; and that in reliance upon this promise she and her husband built a house on the lot, which the defendants, it is alleged, have wrongfully refused to convey to her in accordance with such promise.

From the record it appears that the plaintiff and her late husband had planned to buy a home near Franklin, Pendleton County, but that they were induced by Ona and Jessie Ruddle to abandon the idea of buying such a home, upon the promise of Ona D. Ruddle, allegedly made in 1948, that if plaintiff and her husband would build a house on a portion of the home farm of the elder Ruddles, they would make an appropriate “survivorship deed” to plaintiff and her husband for a one-acre tract on the Ruddle farm near the original homestead thereon. Late in 1948 or early in 1949, and after the date of the alleged promise by Orna D. and Jessie Ruddle, the young Ruddles did build their home on the farm of the elder Ruddles. Plaintiff’s husband, Hansel Ruddle, excavated for the basement of the home, and partly, with the assistance of his father, Ona D. Ruddle, cut the logs on the farm of his parents, but Hansel Ruddle alone sawed most of the lumber out of which the house was built and furnished most of the materials therefor. Plaintiff and her late husband hired a contractor to build the house for the sum of two thousand dollars, which included the work and some material. While the house was being built, there was no protest by either Ona D. Ruddle or Jessie Ruddle to the building thereof.

This record discloses that the house cost the plaintiff and her late husband approximately four thousand dollars, and that it was paid for entirely by plaintiff and her late husband — in fact Hansel Ruddle sold his automobile in order to acquire enough money to pay for the house, and plaintiff materially contributed to the building of the house, in the amount of approximately one thousand dollars, represented by compensation received by her for work as a domestic servant over the course of years, during which time she earned six or eight dollars a week, together with room and board.

After plaintiff and her husband had moved into the house, they had the lot in question surveyed, and a plat was delivered to them. Later the lot was entirely enclosed by a fence. Ona D. Ruddle was present when the survey was made, and evidently knew of the enclosure of the lot by a fence, and likewise the defendant, Jessie Ruddle, living nearby at the time the survey was made, evidently knew of it.

Plaintiff’s witness, Joseph C. Alt, testified that he worked as a carpenter in the building of the house, and that: “Well, when they got done I was building the steps, putting the steps up to the back porch, Ona come around and set down and was talking to me and told me they had surveyed Hansel’s lot off and said as quick as he could get the papers fixed up he was going to make a deed to them.”

Another of plaintiff’s witnesses, Austin Mowery, a carpenter who worked on the house, testified that at the time the lot was surveyed decedent, Ona D. Ruddle, was present; and when asked by this witness about running the line, Ona D. Ruddle said: “That he was running that off, giving that to them as their share of the place.” No objection or exception was made to this testimony, though counsel for defendants did object to the following question addressed to the witness Mowery because it was leading: “Did he state he was going to deed it to them”, which objection not having been ruled upon by the trial court, the witness answered, “He did not.”

Without objection plaintiff testified that on one occasion when she was at the home of the elder Ruddles, Ona D. Ruddle promised he would make a deed to the property, allegedly promised to be conveyed, and that the defendant, Jessie Ruddle, likewise made such a promise to both plaintiff and her late husband.

The plaintiff, Hazel M. Ruddle, also testified, without any objection or exception on the part of the defendants or their attorney, that previous to the time she and her late husband started to build the house, in which plaintiff was living at the time of her husband’s death, they had planned to buy a home just a short distance from the Town of Franklin in Pendleton County; that in answer to the question: “Just what happened that you did not buy the home near Franklin as you planned,” she stated: “Hansel’s mother and father said they would give us a lot to build on, and make me a deed, if Hansel outlived me, a survivorship deed. If I died before he did supposed to go to him;” and further in answer to the question: “About when was that agreement made,” she stated: “In ’48, the latter part, in December.” Though later in plaintiff’s direct examination an objection was sustained to anything that plaintiff’s late husband said, the foregoing testimony was given without any objection.

More specifically bearing on the question of the admissibility of the evidence under the so-called Dead Man’s Statute, Code, 57-3-1, the entire alleged transaction was fully established by the testimony of the plaintiff, Hazel M. Ruddle, elicited by defendants’ attorney on cross-■examination, and because this testimony fully establishes the alleged transaction and was brought into the record by the defendants’ attorney, it is pertinent to the decision of this case that the following questions and answers on cross-examination should be quoted at some length:

“Q. I believe, Mrs. Ruddle, you stated you and Hansel were going to buy a home near Franklin?

“A. We was, out of Franklin.

* * *

“Q. I believe you and Hansel had told Ona and Jessie you were going to buy a home up there?

“A. That is right.

■“Q. I believe you stated that this was in 1948, is that right?

“A. Latter part of ’48.

■“Q. The latter part of the year?

<£A. It was in December I reckon ’48.

“Q. That is when you were going to buy the home when you told them?

'“A. Yes, sir.

“Q. Is that when you were told particularly by Mrs. Jessie Ruddle not to buy a home there that they would give you a lot on which to build?

“A. Right.

“Q. You charge in your declaration that sometime in ’49 you were going to buy your home and it was ’49 that you were advised not to do that, and that you could have a lot down there, which is right ’48 or ’49 you were going to buy a home?

“A. I told you I did not know just exactly the year. We were going to buy a home somewhere around there.

“Q. You testified awhile ago it was ’48, your bill of complaint says ’49, if you know, which is right, would like for you to tell us?

“A. It had to be in the year ’48, it had to be late in the fall, ’49 is when we started building the house, laid the foundation.”

Thereafter, plaintiff’s attorney moved that plaintiff’s bill of complaint be amended so that the clause “Plaintiff further says in the latter part of ’49,” shall read: “The latter part of ’48,” which amendment was made.

After Hansel Ruddle’s death and prior to his funeral, Stanley Mitchell, a brother of Hazel M. Ruddle, testified, without objection, that the defendant, Jessie Ruddle, in the presence of Ona D. Ruddle, in the living room of the home of the elder Ruddles, said: “Well, I did hear a statement from Mrs. Ruddle (evidently meaning the defendant, Jessie Ruddle). Hazel was not to worry about the place. They would make her a deed for it.”

Likewise Cletus Mitchell, another brother of the plaintiff, Hazel Ruddle, who attended the funeral of Hansel Ruddle, heard the defendant, Jessie Ruddle, say to plaintiff, in the dining room of the Hazel Ruddle home, after the death of Hansel Ruddle, that: “I did hear her make the statement she would see that she (Hazel Ruddle) got a deed.”

While it is true that the trial court evidently was of opinion, as disclosed by this record, that the testimony bearing on the alleged transaction, was inadmissible under Code, 57-3-1, this case is fully governed on the question of admissibility of the allegedly objectionable testimony by the case of Mann v. Peck, Admr., 139 W. Va. 487, 80 S. E. 2d 518. In the Mann case this Court in point 1 of the syllabus applied point 3 of the syllabus in Willhide v. Biggs, 118 W. Va. 160, 83 S. E. 2d 876; and held in point 2 of the syllabus in the Mann case: “The question whether a witness is competent to give material testimony ‘in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, * * *’, under the provisions of Code, 57-3-1, must be raised and determined in the trial court, before the competency of such witness may be challenged in this Court on writ of error or appeal.” Point 3 of the syllabus in the case of Willhide v. Biggs, supra, held: “The competence of a witness to give material testimony may not be challenged for the first time in this court, but must be raised and passed upon in the trial court before it can be made the basis of an assignment of error here. The West Virginia cases holding the contrary which are named in the body of this opinion are, in so far as they conflict herewith, expressly overruled.”

This brings us to the question whether this record discloses sufficient consideration to sustain the allegedly parol promise of Ona D. and Jessie Ruddle that the title to the lot, together with the improvements which were placed on the property by plaintiff and her late husband, would be conveyed to plaintiff and her late husband under a “survivorship deed,” as Hansel Ruddle’s share of his parents’ estate. In this regard this case is controlled by the case of Berry v. Berry, 83 W. Va. 763, 99 S. E. 79, wherein in point 1 of the syllabus, this Court held: “A court of equity will enforce performance of a parol gift of land, if such gift was made upon a meritorious consideration and the donee has taken possession of the land and improved it”; and in point 3 of the Berry case it was held: “To establish such a parol gift against the claim of a contract of sale by the donor and for reimbursement for money expended by him in improvement of the property in question and in the payment of taxes and assessments thereon and costs of insurance and repairs, supported only by his oath and made after dissensions had arisen between the son and his wife, the testimony of the wife supported by two witnesses, proof of expenditure of all the money she had in the construction of a dwelling house on the property, a small town lot, in reliance upon his promise to convey it to her, her exclusive beneficial use and possession of the property for several years, as the place of residence of herself and her family, including her husband, her destitution of means other than the money so expended, and inability or neglect of her husband to provide any other home for his family, are sufficient.”

We are, therefore, of opinion that the alleged parol agreement was fully established by the evidence in this case, which was admissible because it was elicited on cross-examination of the plaintiff by defendants’ attorney, and because the allegedly inadmissible testimony was not objected to in the trial court and the parol promise was supported by a sufficient consideration under the holding of this Court in the Berry case.

We therefore reverse the decree of the Circuit Court of Pendleton County in refusing to grant specific performance of the alleged parol contract, notwithstanding plaintiff’s late husband, Hansel Ruddle, had died, and one of the original defendants, Ona D. Ruddle, had likewise died prior to the introduction of the evidence in this case, and remand this case to the Circuit Court of Pendleton County with directions that a decree granting specific performance to the plaintiff, Hazel M. Ruddle, of the parol promise to convey the land embraced in the survey of the one-acre tract, with the improvements thereon, be entered. In the event the defendants refuse or fail to have prepared and executed a deed in accordance with the oral promise allegedly made by Ona D. Ruddle and Jessie Ruddle, the Circuit Court of Pendleton County is authorized to appoint a commissioner, as an officer of that court, in lieu and in place of said defendants, to execute and deliver a proper deed conveying to the plaintiff, Hazel M. Ruddle, the land embraced in the survey disclosed by this record.

Reversed and remanded with directions.