
    BROWN v. SUTTON.
    APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.
    No. 97.
    Argued and submitted November 26, 1888.
    Decided January 28, 1889.
    On the whole proof in this case, some of which is referred to in the opinion of the court: Held,
    
    (I) That the appellant’s intestate intended that the property in dispute should belong to the appellee, that he bought it for her, and that he promised her orally that he would make over the title to her upon the consideration that she should take care of hiih'.during the remainder of his life, as she had done in the past; .
    • (2) That there had been sufficient part performance of this parol contract to take it out of the operation of the Statute.of Frauds, in a court of equity, and to rendérvit capable of-being enforced by a decree for specific performance. ' ' ■ ..
    (3) That the appellee had been guilty of ho laches by her delay in. commencing this suit. ,
    Bill IN equity, to compelía spéciiic performance of a parol contract to convey a tract.of real estate in Wisconsin. ' Decree in complainant’s favor, from which respondent:, appealed. The case is stated in the opinión.
    
      Mr. M-dstús F. Brown (with-whom was- Mr. ’ Edgar F. Brown ón the brief) fqr appellants..
    
      Mr. Edwin' Hurlbut and Mr. Winfield Smithy for appellee, .ubmitted on their brief. ■ '
   'Me. Justice IVItllet?.

delivered the opinion of the court.

'■ The bill was brought by Sarah S. Sutton, the appellee, against Erastus F.- Brown and Francis A'. Kenyon, executors , of the last will of John S. Kenyon, and was in the.nature of a suit for specific performance of a contract- and for the conveyance of the title to a certain house and grounds in the city of Oconotiiowoc, in Wisconsin. There was no written agreement on the subject, but the suit is based upon the idea- of a verbal promise or agreement upon the part of.’ John S. Kenyon in his lifetime that he would- convey the property to Mrs. Sutton, the appellee, and that such part performance had been, had in its execution as to bring the case within the exception made by that doctrine in the requirement of-the Statute of Frauds that the sale of lands must be in writing. • ’ .

The executors and trustees; under the will-filed their answer, denying the existence of any verbal promise at-all, and also denying that it was so far performed as to justify a decree. The court,- however, rendered a decree in favor of Mrs. Sutton, that she was entitled to the property, and that the defendants in the action should convey to her. It is from this decree that the present appeal is taken.

A history of the relations of the testator, John S. Kenyon, to Mrs. Sutton and her husband, is essential to a correct decision of the case. The following facts regarding them are in the main undisputed by either party.

In 1868 Mr. Kenyon liyed with his wife-in Harlem, in the city of New York; was a man of some wealth, ah officer of a bank in Harlem, and at his death left an estate of nearly $200,000. .He was without children or close kin in whom- be was much interested, as was shown by his will, in which, after having made some slight provisions for some of his sisters, he devised the great bulk of his fortune to fifteen charitable and religious societies'or associations. ■ The father of Mrs. Sutton lived in New York and Brooklyn, and she had been intimate with Mr. Kenyon since her birth, being at the time-of the trial about forty-four years old. Prior to 1868 she married Charles T. Sutton, and ever since lived- with him as his wife, but had no children. The wife of Mr. Kenyon was for a very considerable period, certainly from' 1868 to 1872, when she died, an invalid, requiring much care and attention. Mrs. Sutton spent a large part of her time, both before and after the date first mentioned, ;with her, assisting in the care of her during sickness. In 1868 Mr. Kenyon and his wife visited Oconomowoc, at the house of George F. "Westover, whose wife was a sister of Mrs. Sutton. Thereafter the Kenyons removed to Tremont, near New York City, where- Mrs.- Kenyon died in February, 1872. During a large part of this time, and at her death, Mrs. Sutton was with her. Shortly after her decease, Mr. Kenyon and Mr. and Mrs. Sutton went to Oconomowoc together, lived in the family of Westover, paying therefor a consideration, and so continued until April, 1874, except' a few weeks,- when Mr. Kenyon was absent. Westover then removed to Chicago, arid on the 28th of that month Kenyon bought a cottage in the village of Oconomowoc, and lived in it with the Suttons,-who kept the house. On July 1, 1874, Kenyon made a deed of tliis cottage to Mrs. Sutton,, declaring it to be in accordance with the request of his wife during her lifetime,- as a tribute from her to Mrs'. Sutton. For seven years these three continued living together in that cottage, Kenyon making certain contributions for board, or as his quota towards the expenses of housekeeping. During these years he made frequent trips to New York on business connected with the bank of which he ivas a shareholder and probably a director, being absent'from several weeks to three months at a time. "While in New York in 1879 upon one of these visits, he made a will, in which, after disposing of several small items of personal property, giving to Mrs. Sutton all the personal property in her house at Oconomowoc, except his jewels, and the interest during her life on one-third of $10,000, and to his sisters some slight bequests of jewelry and furniture, the body of his estate was bequeathed to his executors as trustees for the associations referred to. In November, 1879, the Suttons closed the cottage and spent the winter in New York, in,a house belonging to Mr. Kenyon and furnished by him, the family consisting of the same three persons and one servant. Thereafter they seem to have vibrated for a. year or two between the house in New York and the cottage in Oconomowoc, always living together as one family. In September, 1880, Mr. Kenyon bought, for the consideration of $2300, the premises in dispute in this action, known as the “ Oaks,” situated in Oconomowoc, and in.1881 began the erection thereon of,a large dwelling-house. Late in the fall of 1881 he went' with the Suttons again to New York, and they all resided together as usual in his house, until he was stricken with apoplexy, and died in January following.

The bill alleges that the property called the Oaks was bought by Mr. Kenyon for Mrs. Sutton; that he had promised to buy it for- her as a consideration for the services rendered to-him, and to be thereafter performed, in keeping house for-him and giving him her care and society, and that he also' agreed to build thereon' a new house, of sufficient' dimensions to accommodate others besides these three who lived together, as a family, so that if the necessity should, arise, in event of Mr. Kenyon’s death, she might be enabled to make a living by keeping boarders. It is claimed that the.land was bought and the bouse built in accordance with this promise, or at least that it was in progress of erection at the time of his death. A definite promise, on his part to do this' is' asserted, the consideration for which was sufficient in what she had already done and had agreed thereafter to do- for him. Mr. and Mrs. Sutton were placed in possession of the premises as soon -as the purchase was made, and they were living there at the time the present suit-was brought.

The controversy in the present case is really whether any such promise or agreement was made, because if it was there can be little doubt that the delivery of possession to the Sut-tons, and the construction of this house under their direction and control, is a sufficient part performance to ■ take the case out of the Statute of Frauds.

As Mrs. Sutton was not competent as a witness to establish a promise on the part of Mr.- Kenyon to convey the property to her, under § 858 of the Kevised Statutes, and as M!r. Sutton, being’ her husband, was also incompetent, if can be readily seen, in the absence of any written agreemént upon the subject or any correspondence between the.parties, which could not reasonably be expected to exist as they were nearly always living together, that it is almost impossible to prove a direct verbal promise'from Mr. Kenyon to her in-regard to that matter. Any such promise must be largely inferred from the situation and circumstances of the parties, and must depend almost wholly on verbal statements made by Mr.’ Kenyon to ■others.' •

The depositions in the case contain'full and ample evidence of the declarations of Mr. Kenyon on this subject. They are in substance, that he had bought the property for Mrs. Sutton; that he had given it to her, had placed her in possession of the ground, and was building a house upon it for her at the time of his death; and- that he treated her and her husband as, and frequently called them, his children,” 'or “the children-”

There can be no question that Mr. Kenyon bought • the property in dispute with the intention, clear and well defined in his own mind, that he was buying it for Mrs. Sutton.; and when he came to build the house upon it ther^ can be'as little doubt that he erected it for her with the intention that it should be -her house, expecting to live with the Buttons as long as he lived, and that it would go to her in the event of his dying before she did. It may' be said, and-, it is true, that this unexecuted purpose of his is -not of itself sufficient to constitute a contract to convey to her the' house, nor'would it alone be a sufficient foundation for a decree; but it leaves the case in such a position that no very strong evidence is required-that such a contract did exist, as it would be entirely consistent with all the other uncontradicted testimony in regard to what he had said and doné and with the possession of the property by her. There is also quite a sufficient consideration for such a promise in the services, care and attention rendered by her to an old man in his declining years, in connection with the fact that at the time he bought this property he was very sure of receiving these attentions as long as he lived. The evidence shows that this expectation on his part was fully realized. Let -us examine briefly the positive evidence of a promise on this subject.

We have the testimony of Mr. Westover, whose relation to Mr. Kenyon and the family has already been noted, in whose house they lived for two summers prior to his removal to Chicago, and who seems to have been on intimate terms with Mr. Kenyon, that he had many conversations' with him about his private matters, although he was not a man who. talked generally about his affairs. He-states that Mr. Kenyon was not well, and never was well, since ho first went to Oeono-mowoc; that he was a pretty old man, at least old enough to be Mrs. Sutton’s father, and probably older than her own father was; that'he needed a great deal of nursing, and wanted more cafe and attention when near her in the little details of life than any man he ever saw"; that he seemed to dread to be alone, and in fact she went everywhere with him, and devoted the most of her life during those years to him as a daughter to a father. He says: “ She filled the place that an exceedingly attentive daughter would to a weak, 'sickly, old father. I never saw a case in' a family of more marked service in that line than was -that casé. No person but Mi's. Sutton- was relied upon, to look after his personal wants at all-”' ‘

The witness then went on to'state, a .conversation that he had with Mr. Kenyon about his affairs, in which he said of his relatives: “ All they w.ant of me. is my money; some day they will be terribly disappointed'; ” • and proceeded td say that no one had filled- the place of a relative to- him as-had Mrs. Sutton; that he was under great obligations- to her, and how to discharge it4 to repay her, or attempt to repay her, ¡was something that he was considering, and that he was going to recompense her for her services to him in some way. After .the purchase of the property int dispute here,. Westover asked Mr. Kenyon about it, and gives his language as follows: “ lie tc>ld-m.e then that that was the final, result of his. determination as to Mrs.-"Sutton;' that he had bought ,the place -for her; that she wanted it, and he had made up his. mind, that it was the very -best that could he done, and he had promised her that -he would put a house on the place, such as she wanted, and the place should he hers. He said that it was not- perhaps as much as Mrs. Sutton was really entitled to, but he thought that after all it would be better for her than. if she should be provided'- for in some other way ■ that would be even larger. He said that be had made her home' his home,"as I knew; and it was understood that he was to continue thereafter making his- home with Sortie, that is, Mrs. Sutton.”

Mr. Kenyon then went on to say, as the witness states, that, by having,a fine building on the place she would be able, if anything should happen to' him, to take care of herself by keeping boarders; and continued:

..-.“The house will be such as Mrs. Sutton wants. I have' agreed -that 'Sortie shall have the house just exactly as she ¡wants it; just to suit-her. He,said he was to continue to make his home with Mr; and Mrs.' Sutton, and that in view of the past and her services to him, and what had been done, and in view of the position which she was' occupying as to him, and'the services'she had performed and was still to perform, he had promised her that place, and he had bought it for-her because it .pleased her, and he had promised to build such á house thereon as she should want.”

If this statement be true, here is at once, the promise.and the consideration for it, amounting to an agreement stated, in Mr. Kenyon’s own language,, with all, the clearness of detail necessary to a contract. . There was no question about the property to be conveyed, the promise, to build the'house, the parties to the agreement, or the consideration for the premise.

The witness then details a conversation. which he had .in' 1881, in which Mr. Kenyon reminded him of what he had-sait to him before on the same subject, and said that after mucl. thought he-had concluded that was the best arrangement, and she had agreed todt; that it wag .arranged between them that he should continue to live with her in the future; that he was under obligations to her for what she had done for him individuallv, and that he had made arrangements with her and she would continue to do for him as she had done, and he hact promised to huy that place for her and fix it up and deed it to her. The witness then testified. as to the board paid by, Mr. Kenyon, and said: “ I understood from him, as. he said, that, the services of Mrs. Sutton which she had rendered him, and which he was under obligations to requite,-together with those of the same kind which'she had agreed to perform in the future, were the, basis of his promise to convey -her the premises in dispute, and were outside' of anything which he had furnished in cash expense of living.”

Julia L. White, who was well acquainted with Mr. Kenyon,' ■ details various conversations witji him, in one of which he said that he wanted, to give the property which -is now in', controversy to Mrs. Sutton, for she had taken care of him and had promised and wás to continue to take care of him as - long as he lived, and that he then said' he had promised to give it to her. She testifies that Mr. Kenyon stated to her that- he desired to purchase this property for Mrs. Sutton on account of the services and care she had already given to him, and'had promised 'to gime him; and that he said on Wednesday before his deáth that he had bought the place, that it waS for Mrs: Sutton, to make her home there for the care she had .given him and for the care she promised to take of him until his death. ’

.Mr. Small; who .lives adjoining the property in dispute, details a long conversation be bad with Mr. Kenyon in regard to the building of the bouse, and states that be said: “ I am not building it for myselfI am building it for Mrs. Sutton.” Mr. Kenyon then went on to say that he did not want to be bothered with the building of it; he had left it all to Mr. and Mrs. Sutton; he had nothing to do with the building except to furnish the money; that the rooms had all been arranged by. her, and that he intended she should have it as she wanted it. He states that he asked Mr. Kenyon, in whom the title was, whether it was in Mrs. Sutton at that time, and he replied : “ No, when the the property- was bought I took the deed, but I intend to have the property all fixed in Mrs. Sutton.” “I said, ‘Haven’t you done anything about it yet?’ He said, ‘No.’ Saidi, ‘You may have it in your mind to do something you want to do, but if you .do not do it, if you should be taken away, it won’t be done. Under our law, unless there is a writing made, or the parties put in possession under the agreement, it. won’t amount to anything.’ He said, ‘I can’t make anything out here for the reason my papers are. in New York. I desire to make some alterations in my affairs.’ Then I shall fix it up, but I shall put them in possession. I have put them in possession. Mrs. Sutton has had possession ever since I went to New York in the summer. ■ I turned it over to them then, and they are now in possession. Mrs. Sutton has the keys to the little-house and all the property, and I intend they shall be in possession, and are in possession just as perfect as I can make it. If I had my papers 'here I should have them altered now. I have my attorney down there. I don’t want to do anything until I get down there.’ ■ He said, ‘ I propose tc give it to them. Mrs. Sutton has been very kind to me in sickness and disease in my family; took caró of my, wife until she died. I have a good home myself with them. I propose now to repay them in this way.’ ” The witness also testifies as to other conversations, in which Mr. Kenyon declared that the keys and the possession were in the SutT tons;.that the property was theirs to all intent and purposes; that the title- was taken in his name when he bought the 'propi erty, but that he intended Mrs. Sutton should have it, and that, he frequently spoke of them as the children.” . •

Mrs. Williams, an insurance agent, while examining the house at' the request of Mrs. Sutton, with reference to a policy, met Mr. Kenyon on the premises.- He showed her over the house and directed her attention to certain alterations that the Suttons had made in the plan, and said: “It is as they'want it; it is.the children’s; it don’t make any difference to me how they fix it.” And again she states that he said in regard to the' gables that he would have' made every one different', but the children (a phrase which he often used with -reference to Mr. and Mrs. Sutton) wanted it so, and it did not make any difference to him; “ it was theirs.”

To William K. Washburn, who was working about, the grounds, Mr. Kenyon'said that he was-fixing it up for Mr. and Mrs. Sutton,' that it was -their place,, and they were in possession.'

In regard to some of the details,-Mr. Eastman, another witness, testified that Mr. Kenyon said he had nothing to do with the building of it; that Mr. Sutton was building it for himself.

Mr. Anderson, a resident of Oconomowoc, testifies that he asked Mr. Kenyon, in a conversation that they had about the place now in dispute, if he felt anything like a Granger; and that his reply was that lie could not say he-did, as he did not -buy the place for himself, but had bought it for Mrs. Sutton, who undoubtedly would be a permanent resident; although he should make it his home with them while there, as he had for several years made'their place, his home. In another conversation, Mr. Kenyon said to him that the building was much larger than they intended in the start, but he was building it entirely for Mrs. Sutton, and it had been enlarged at her suggestion ; th^/É Mr. Sutton had the- entire control," -and he had authorized him to build' and finish it and make the improvements exactly as.Mrs. Sutton wished. On his-cross-examination he- testified that Mr. Kenyon said he had bought it, but not for himself; that he had bought it for Mrs. Sutton,, arid they would make it a permanent'residence, and-he should make it his home with them whenever he was there.

• Celestia Edwards testifies to a - conversation with Mr. Ken - yon about the property, in which he remarked that they would háve a very beautiful place and home there, to which he replied, that he liked it very well,' but it did not make any difference to-'him; “it. was all theirs, it was the children’s; they were fixing it up just to suit themselves.”

Clarence I. Peck also testifies to á conversation about this place, in which- Mr. Kenyon said that he intended to finish it up in good style for “"the children,” as he called them; meaning Mr. and Mrs.Sutton; and also that he said on another occasion: The place belongs to .Charlie' and Sortie, anyhow, and I thought I would' give the job of superintending it to Charlie.-”

Some comment is made that the most direct testimony on the subject of a promise comes from the sister and brother-in-law of the plaintiff, but there is nothing to discredit their evidence, no impeachment of their character is attempted, nor is it shown that they are in anyway dependent upon her. No reason is given why they should state anything false, and their, testimony is wholly uncontradicted. It is also consistent with all the circumstances of the case.

It is, further made a subject' of comment that Mrs. Sutton did.not make claim to the title to this property, nor bring this suit for two or three years after the death of Mr. Kenyon; but it is easy to suppose that she really believed that for want of a written promise or agreement she could not enforce her right to the property.- . While this principle of the necessity for a written agreement in regard to the title to real property-is almost universally understood among all classes of people, however unlearned in .the law, it is not very well known that there is an exception to it in the case of a promise, not in writing, but sq far performed as to take it out of the Statute of Frauds.

On. the whole, we think that the evidence justifies the infer-enee that Mr. Kenyon,-having a clear intention that this property should belong to Mrs. Sutton, bought it for her, and also .promised her that he would make over the title to her upon consideration that she should take , care of him during the remainder of his life as she had done in the past.

The decree of the Circuit Court is therefore Affirmed.  