Van Sickle v. Keck

81 P.2d 707, 42 N.M. 450

• Court: New Mexico Supreme Court
• Decided: July 15, 1938
• Docket: No. 4359.
• Status: Published

Opinions

BRICE, Justice.

The appellant sued the appellees for an interest in, and to impress an equitable lien against, certain real estate situated in Lincoln County, New Mexico.

The appellant will be styled plaintiff; the defendant Keck, defendant, and the other defendants styled defendant Woolard and defendant Franklin, respectively.

Plaintiff alleged in substance that in 1931 he entered into an oral agreement with the defendant and his wife, by the terms of which he was to furnish labor, material and money, sufficient to build a house for defendant on certain lots described; in consideration for which the defendant and wife agreed to board him for life, and upon his death provide for him a suitable burial. That pursuant to this contract the plaintiff did furnish the labor and material with which to build the house in question, of the value of $3550.41.

That plaintiff boarded with defendant and wife until the latter’s wife died, which occurred in the latter part of September, 1935; after which defendant failed and refused to longer carry out the contract. That the board furnished plaintiff was of the value of $1607, and that the balance due .him was $1943.41; being the difference between the said sum of $1607 and the amount furnished by plaintiff for the purpose stated. It was alleged that the defendant has no other property subject to execution and that plaintiff has no adequate remedy at law.

The tenth paragraph of the complaint is as follows: “That by reason of the premises above stated this plaintiff is entitled to an interest in said property in the sum of $1,943.41; or such sum as the Court may find remains after allowing a reasonable sum for board during the period of time that plaintiff boarded with the said Kecks.”

The prayer is “That plaintiff’s interest in and to said property 'be ascertained and adjudicated and a lien established against the same.”

There were certain transfers of the property in suit in which defendants Keck, Woolard and Franklin were parties, which it is alleged were fraudulent, and for the cancellation of which, the plaintiff prayed.

At the close of appellant’s testimony appellees moved for dismissal. 'The motion was sustained and judgment entered dismissing appellant’s bill. From the judgment of dismissal this appeal was prosecuted.

The motion to dismiss called for a declaration of law, the effect of which is: considering plaintiff’s testimony only, and in a light most favorable to him, together with all reasonable inferences that can be deduced therefrom, has he proved a case that will support a decree? Considering the evidence under this rule we find the following facts:

The plaintiff was a carpenter and builder, and went to Ruidoso in Lincoln County about 1926. The defendant moved there in April, 1929-, Plaintiff boarded with de: fendant for some time and they became friends. Plaintiff advanced money to the defendant with which to buy a lot, and on this lot plaintiff built for the defendant a house for residential and business purposes, at a total cost to plaintiff of $3564.811 After the house was built, an agreement between the two was entered into whereby in consideration of the money so advanced by plaintiff, the defendant agreed to board plaintiff for the remainder of his life and give him a decent burial at his death. In pursuance of this agreement, plaintiff boarded with defendant and his wife until the latter’s death on the 13th day of Sep: tember, 1935, a period of 1628 days, the value of which was $1628. The defendant thereafter was unable to carry out his agreement further.

The plaintiff assumes the measure of damages to be the difference between the value of the board furnished and the original debt, or $1943.41. This seems not to have been contested.

On' the day after this suit- was brought defendant conveyed the property in question to the defendant Franklin, and a short time thereafter Franklin conveyed it to defendant Woolard. The defendants Franklin and Woolard knew of the pendency and purpose of this suit at the time of these transfers; and the evidence would warrant the inference that the two transfers were made with the intent and purpose of defrauding the plaintiff out of the debt which it was agreed was due him, and that the defendants Franklin and Woolard had full knowledge of that intent.

The agreement for plaintiff’s support and burial was apparently not thought of until after the house was completed. He'advanced funds to buy the lot and build the house, and when this was accomplished defendant owed the plaintiff $3564.81.

: As we understand plaintiff’s argument, it is that he is entitled to an equitable lien against the real property in question, to secure him for the balance of the original debt, after deducting the value of his board for 1628 days at $1 per day; presumptively because he advanced the money to buy the lot. and to build the house thereon.

There was no agreement in writing, or otherwise, that plaintiff should have a lien or mortgage on the property to secure his debt. An equitable lien in his favor did not arise from the fact that plaintiff furnished the money to buy the lot (Perry v. Neel, 126 Neb. 106, 252 N.W. 812) and erect the building thereon. Thorbahn v. Walker’s Estate, 269 Mich. 586, 257 N. W. 892.

A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another; but will leave the parties to the remedies, if any, that a court of law provides. Washington Market Co. v. District of Columbia, 172 U.S. 361, 19 S.Ct. 218, 43 L.Ed. 478; Spencer v. Williams, 113 W.Va. 687, 170 S.E. 179, 89 A.L.R. 1451; Perry v. Neel, supra; Thorbahn v. Walker’s Estate, supra.

The amount due plaintiff was computed by deducting from the original debt the value of board furnished the plaintiff for 1628 days at a value of $1 per day. The parties seem to have agreed to this measure of damages; and for the purposes of this suit we will assume the amount is correct. But the correct measure of damages is a sum of money which, invested in safe securities, would produce a monthly income sufficient to board plaintiff during his life (in this case $30 per month), leaving only enough at his death to decently bury him. Freeman v. Fogg, 82 Me. 408, 19 A. 907; Staiar’s Adm’r v. Netter, 198 Ky. 788, 250 S.W. 89; Shover et al. v. Myrick, 4 Ind.App. 7, 30 N.E. 207; Baughan v. Baughan, 122 Ind. 115, 23 N.E. 695; Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367. In arriving at the amount of damages, recognized mortality tables may be introduced in evidence to be considered by the jury with other competent evidence to establish the probable length of plaintiff’s life, as a basis for proving the time for which the defendant was paid to furnish board to plaintiff. Staiar’s Adm’r v. Netter, supra; Morrison v. Atee, 23 Or. 530, 32 P. 400; Shover et al. v. Myrick, supra; Vicksburg & Meridian Ry. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257.

Plaintiff cites cases in which deeds to land, given by aged persons in consideration of support for the remainder of the grantor’s life, had been cancelled, or in which equitable liens had been impressed on such lands where the contracts had been breached. Contracts by which aged persons transfer all, or the major portion of their property in consideration of an agreement on the part of the grantee to support the grantor during the remainder of his life, are in a class by themselves, and are governed by different rules, or at least by different presumptions, than those governing other like contracts. Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862.

But this is not a case of that class. It was not alleged or proved that plaintiff was an aged person; or that the consideration paid was any considerable portion of his property; or that he was induced by false promises to enter into the contract; or that defendant was guilty of any fraud in connection with the making or execution of the contract; or that any fiduciary relation existed between the parties. On the contrary it appears that the defendant and the plaintiff were not related; that plaintiff himself proposed to furnish the money to buy the lot and build the house; that after it was built he proposed to cancel defendant’s obligation to him if defendant would board him and give him a suitable burial at his death; inferentially, that plaintiff knew defendant and his wife were without means; that defendant did not carry out the contract because of his physical, mental and financial condition, and for no other reason. Plaintiff lived in his own house and defendant’s obligation was limited to furnishing to him his meals. He is a.carpenter and builder. He owns a hardware store and the house it occupies, and several cottages in Ruidoso which he rents. Apparently he is a man of considerable means and income. He offered to give the debt sued on to Mrs. Keck’s nieces if defendant would sell the property and pay them the amount of the debt from the proceeds of such sale. He was not entitled to the personal care and attention contemplated by contracts like that construed in Anderson v. Reed, supra, in which we said (page 505) : “But the courts of this country, with but few exceptions, treat contracts by a grantee to furnish a home for and support to a grantor, when constituting the consideration for a conveyance by the grantor of the whole or major portion of his property, as being in a class by themselves, which are not governed by the ordinary rules which apply in the construction of contracts. * * The value of the services, care, and attention contracted for cannot be measured in money. In this case, while others might have administered to the necessities of the grantor; in caring for and nursing him, they could not give to him that which he understood he-was contracting for, viz., the care 'and nursing by one upon whom, if the witnesses are to be believed, he bestowed his love and affection and believed that he was receiving in return, and would continue to receive, daily evidences of similar devotion and affection, the loss of which, and her ministrations to his wants, could not be supplied by others, or its loss measured in money, as stated. 'Such a consideration as the above is not regarded as an ordinary obligation, but is' of a peculiar character, imposing upon the grantee burdens which must be performed, if he would retain the benefits of the contract. Courts of equity, because “of the inadequacy of any legal remedy, do 'not hesitate to set aside such contracts, up-<3n proof of failure to perform by the grantee. Such courts are not so much concerned as to the proper theory upon which such contracts may be avoided, as they are that they, must be set aside in order to prevent grave injustice and the imposition upon aged people, by unscrupulous persons, who pretend love, devotion, and friendship, ■yvhere no one of such elements exists. Cancellation is the only adequate remedy applicable to such a case, where there is a refusal or intentional failure to perform. This being true, it is only natural that we should find the courts at variance, upon the proper equitable ground upon which such cancellation should be predicated.”

The application of the rule of law invoked by plaintiff was made in Anderson v. Reed, supra, and in the following cases which illustrate it:

“Such contracts have come to be looked upon as almost if not quite presumptively improvident in their inception, and in that view courts of equity have gone to great lengths to remedy the mischief by reading out of them a condition, where a covenant only is expressed, upon which may be founded, on principle, a right of rescission where justice requires it for t;he protection of the weak, the exercise of which will undo the mischief ab initio and restore the parties, substantially, to their original situation.

“In this case it seems that the hope and expectation of filial regard was the moving cause on the part of respondent in transferring his property to his son. * * * The contract reposed in appellant a trust of the most important character—that of caring for the daily wants of an aged parent in health and sickness to the end of his life, —a trust which only the trustee, under proper conditions, could properly exercise —one that never ought to be delegated, never can be properly delegated to another not in the same relation.” Glocke v. Glocke, 113 Wis. 303, 89 N.W. 118, 121, 57 L.R.A. 458.

“This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the condition of the plaintiff at the time of the execution of the papers in question. * * * The principles upon which the rule is based are exhaustively considered in the cases cited, and need no repetition. It is enough to say that they go upon the theory that property thus conveyed shall remain intact for the security of the conditions thus annexed to. the grant.” Morgan v. Loomis, 78 Wis. 594, 48 N.W. 109, 111.

“The facts alleged are not sufficient to constitute a cause of action for specific performance, for the reason that the consideration which appellant agreed to pay on his part included intimate personal services of himself and his wife, expressed by the stipulation that they should ‘make a home for the appellee, board and care for him.’ It is obvious that the court would have no means of compelling the appellant and his wife during the remainder of appellee’s life to perform all those intimate services due from a son and daughter-in-law which are implied by the undertaking to make a home for the father and to care for him; and a court will not compel one party to perform when performance by the other cannot also be enforced.” Hoppes v. Hoppes, 190 Ind. 166, 129 N.E. 629, 630.

“ * * * There is in such transactions an element of confidence reposed by the old people in their 'grantee, sacred in its nature, a breach of which, and retention of the benefits, no court should tolerate by a refinement upon technical rules and principles of law. By the modern trend of authority these transactions are placed in 'a class by themselves, and enforced without reference to the 'form or phraseology of the writing by which they are expressed, dr whether by the strict letter of the law a forfeiture of the estate is expressly provided for. The Wisconsin Supreme Court recently has taken a broad view of such contracts, and laid down a rule which commends itself as fair and equitable, and results in effectuating the intention of the parties to the transaction. The agreement of support, whatever its form, is construed by that court as a condition subsequent, and not a mere covenant.” Bruer v. Bruer et al., 109 Minn. 260, 123 N.W. 813, 814, 28 L.R.A.,N.S., 608.

Also, see Berry v. Heiser, 271 Ill. 264, 111 N.E. 99; Stephens et al. v. Daly, 49 App.D.C. 389, 266 F. 1009; Roudebush v. Gannon et al., 92 Wash. 508, 159 P. 680; Cooper v. Gum, 152 Ill. 471, 39 N.E. 267; Chadwick v. Chadwick, 59 Mich. 87, 26 N.W. 288; Tysor v. Adams, 116 Va. 239, 81 S.E. 76, 51 L.R.A.,N.S., 1197; Gall v. Gall, 126 Wis. 390, 105 N.W. 953, 5 L.R.A.,N.S., 603; McClelland v. McClelland, 176 Ill. 83, 51 N. E. 559; Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Lowman v. Crawford, 99 Va. 688, 40 S.E. 17; Fabrice et al. v. Von der Brelie, 190 Ill. 460, 60 N.E. 835; Knutson v. Bostrak, 99 Wis. 469, 75 N.W. 156; Ptacek et ux v. Pisa et al., 231 Ill. 522, 83 N.E. 221, 14 L.R.A.,N.S., 537; White, Executor, v. Bailey, 65 W.Va. 573, 64 S.E. 1019, 23 L.R.A.,N.S., 232; O’Ferrall v. O’Ferrall et al., 276 Ill. 132, 114 N.E. 561; Payette v. Ferrier et al., 20 Wash. 479, 55 P. 629; Leary v. Corvin et al., 181 N.Y. 222, 73 N.E. 984, 106 Am.St.Rep. 542, 2 Ann.Cas. 664; Lane et al. v. Lane, 106 Ky. 530, 50 S.W. 857; Schell v. Plumb et al., 55 N.Y. 592; Grant v. Bell et ux., 26 R.I. 288, 58 A. 951; Sherrin et al. v. Flinn, 155 Ind. 422, 58 N.E. 549; Thorbahn v. Walker’s Estate, supra; Washington Market Co. v. District of Columbia, supra; Spencer v. Williams, supra, Perry v. Neel, supra.

The case is no different than if plaintiff had paid $3500 in cash for the promise. He parted with his debt as he would have with the money in the supposed case. He never owned any interest in the land in question nor did he convey any to defendant; and the parties had no agreement by the terms of which defendant is entitled to an equitable lien thereon.

Assuming that plaintiff was, at the time of the agreement, entitled to (and could have obtained) a statutory lien against the property in question to secure his debt; and assuming that, in a proper case, this court would lay hold upon this fact as a ground (or excuse) for impressing an equitable lien to secure the amount due an aged person coming within the class entitled to relief, upon the theory of a right to rescis* sion; could we do so in this case, in which none of the reasons for the rule exist, and in which no such issue was made by the pleadings or proof? The sole and only ground proved or claimed (the allegations did not conform to the proof in some respects) for granting to plaintiff this extraordinary relief, is the fact that at his solicitation defendant accepted his offer to cancel a debt in consideration of an agreement to board him for life, etc., which, after a number of years, was breached by defendant because of inability to perform further. These facts are not grounds for such relief.

It is claimed that if plaintiff was not entitled to a lien, yet the court should have entered judgment for the amount of damages to which the parties had agreed that the plaintiff was entitled, upon the theory that as equity had obtained jurisdiction of the parties and the subject matter of the action it could adapt the relief to the facts and enter a proper judgment in order to prevent a failure of justice. The rule under the code system is: “Thus it may be regarded as a settled rule, resulting from the statutory provision in question, that if a plaintiff has set forth facts constituting a ca.use of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or an equitable remedy when it should have been legal. * * * A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he demands. A party .cannot be sent out of court merely because the facts alleged do not entitle him to relief in equity, if the case which he states shows him entitled to any relief, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts. * * * ” Pomeroy’s Code Remedies, Sec. 11.

But it was plaintiff’s theory in the district court that he was entitled to an equitable lien upon the property in question to secure his debt which represented an interest in the property, not to recover a judgment or foreclose such lien. No other question was presented to the district court by either party, and it cannot be raised for the first time in this court. Thomas et al. v. Johns, 35 N.M. 240, 294 P. 327.

It is not the duty of the district court to grant relief not requested in some manner by plaintiff, and not within the theory upon which his case was tried. The court might rightfully conclude that plaintiff did not desire a judgment at law for the debt, even though the court was authorized to enter it.

As we view the case, plaintiff’s remedy was a suit for breach of contract. The fact that the contract is a continuing one does not prevent a determination of the damages as of the time of its breach. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953.

If the parties have agreed upon the measure of damages as the evidence seems to indicate, their agreement is binding on this court. Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276.

The plaintiff had a remedy by judgment at law and execution thereon, or by attachment, notwithstanding the alleged fraudulent transfer of the property, N.M. Sts.1929, Sec. 46-124 and Sec. 105-1601; or perhaps by creditor’s bill, Huneke v. Dold, 7 N.M. 5, 32 P. 45; Early Times Distillery Co. v. Zeiger, 9 N.M. 31, 49 P. 723; or by judgment, execution and supplementary proceedings subsequent to execution. N.M. Sts.1929, Sec. 46-125. But he had no' interest in, or claim on, the real estate by reason of his. contract for support and its breach. ! •

Assuming that the facts alleged authorized a personal judgment against the defendant, or constituted a sufficient creditor’s bill (Early Times Distillery Co. v. Zeiger, supra); yet it appears that the case was instituted and tried in the district court solely upon the theory that plaintiff had some interest in this property, represented by his claim against defendant, by reason of which he was entitled to have impressed against it an equitable lien.

Parties cannot upon appeal change their contentions, shift their positions nor advance new and different theories from those made and advanced in the trial court. American Investment Co. v. Lyons, 29 N.M. 1, 218 P. 183; Smith v. Borradaile, 30 N.M. 62, 227 P. 602; Springer Ditch Co. v. Wright, 31 N.M. 457, 247 P. 270; Albuquerque Lbr. Co. v. Tomei, 32 N.M. 5, 250 P. 21.

The decree of the district court is affirmed, reserving to plaintiff his right of action at law, or by creditor’s bill if he so elects.

It is so ordered.

BICKLEY, SADLER, and ZINN, JJ., concur.