
    Orpha Lenox, Respondent, v. James Lenox and Others, Appellants.
    Fourth Department,
    May 6, 1908.
    Real property — facts insufficient to establish equitable lien—husband and wife — when action by widow on her husband’s contract does not lie.
    Action to establish an equitable lien on lands. It appeared that the plaintiff and her husband had lived on his father’s farm, at first working the same on shares and afterwards paying a money rental. There was evidence that the father prior to the death of the plaintiff’s husband had promised to devise the farm to him provided he advanced part of the consideration for the purchase of another farm, and at,3the father’s death should pay certain sums to other parties. Although such will was actually made it did not appear that the plaintiff’s husband had formally accepted his father’s proposition or did anything from which an acceptance could be implied, except remaining on the farm as before, paying rent and making certain improvements, nor did he by any express agreement obligate himself to make the payments to third parties upon the death of his father. The plaintiff’s husband did, however, pay to his father a certain sum which was used as part of the purchase price of other property. After her husband’s death the plaintiff. worked for her father-in-law and gave evidence that he made a similar agreement to devise the farm to her and executed a will to that effect. It was not alleged or proved that the father was not at all times able to pay any j udgment which might be recovered against him. On all the evidence,
    
      Held, that the alleged agreements and acts done pursuant thereto were too indefinite and uncertain to authorize a court of equity to impose an equitable lien upon the lands in favor of either'the plaintiff or her husband, and that the remedy, if any, was at law;
    That the plaintiff could not sue individually at law on the alleged contract of her husband, or for the money paid by him, in the absence of an assignment of the claims, for the reason that they belonged to his estate and were subject to administration for the payment of his debts and distribution.
    Appeal by the defendants, James Lenox and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 15tli day of ¡November, 1907, upon the decision of the court rendered after a trial at the Erie Special Term adjudging the defendant James Lenox to be indebted to the plaintiff in the sum of $2,157, and directing judgment against him personally for that amount, with costs, and also adjudging the plaintiff to have an interest in the premises described in the complaint to that amount, which constitutes a lien upon the same. The judgment also directs that if such amount is not paid by the defendant James Lenox within thirty days after entry of judgment against him and service of a copy thereof upon him, the premises shall be sold according to the usual practice of the court and that out of the proceeds the amount adjudged to be due to the plaintiff and the costs awarded shall be first paid, with interest, and that any sums remaining shall be paid to the defendants Sarah A. Taylor and Frances E. Lenox, share and share alike, and that in case of deficiency the plaintiff shall have judgment against the defendant James Lenox for the amount thereof.
    The action was commenced on the 13th day of July, 1907, practically to obtain the relief awarded by the judgment.
    
      Fred J. Blackmon and H. A. Reynolds for the appellants.
    
      Ernest F. Kruse, for the respondent.
   McLennan, P. J.:

The defendant James Lenox, who at the time of. the trial was seventy-four years of age, was the owner of the premises described in the complaint, consisting of a farm of about two hundred acres. The plaintiff is the widow of Elwin Lenox, the son of James Lenox. Elwin died intestate on the 22d day of April, 1891. He left him surviving the plaintiff and one child, Odessa Lenox, who died May 23, 1902, intestate and without issue. The defendants Sarah A. Taylor and Frances E. Lenox are the daughters of James Lenox. In March, 1883, the plaintiff and Elwin Lenox were married and in October following they moved onto his father’s farm, the premises in question. The father and his family, at that time consisting of himself, wife and unmarried daughter Frances, resided upon an adjoining farm. In March of the following year (1884) James Lenox, his wife and daughter Frances moved onto the farm in question and lived with the plaintiff, her husband and their daughter Odessa as one family until Elwin’s death in 1891, and during all-of that time the plaintiff did the work of the household for her husband. After Elwin’s death the plaintiff continued to work as before, the family then consisting of herself and daughter Odessa, James Lenox and his wife, until her death, which occurred in 1895, his daughter Frances and a hired man. This continued until December 20, 1898, when the plaintiff and her daughter left the farm. This was seven days before the marriage of James Lenox to his second wife, one Mary Southwick, and it is apparent that the plaintiff left because of such approaching marriage, which was opposed by her. At all events she was discharged by or left with the consent of James Lenox. Soon after James Lenox’s second marriage his wife became deranged and was removed to a hospital. He then engaged the plaintiff to return to the farm and work for him, agreeing to pay her two dollars and fifty cents per week for her services, which he did during a part of the year 1899 and until she finally quit in October of that year.

The plaintiff testifies that when she and her husband moved onto the farm in 1883 it was fully stocked with cattle, although there were no horses on it except colts; that the buildings were in good repair; that during the first year the farm was worked on shares, each party having one-lialf of the proceeds; that after the first year and until Elwin died he paid all expenses and paid to his father $100 per year.

The plaintiff further testifies that in the year 1888, after she and her husband had moved onto the farm, and James Lenox with his wife and daughter had become members of tlié household, she heard a conversation between her husband and the defendant James Lenox; that .James Lenox said he wanted to get the Washburn farm, so called, back into the family, and that if we would help pay the difference between the two farms, the Washburn farm and the one then occupied by Sarah Taylor, he wrnuld buy it and let his daughter, Sarah Taylor, have it; this farm that they live on. At .first it was talked over about paying $1,000, and then he thought the buildings needed repairing, and then he said we were to pay $1,500, and he would call that paid toward our interest in this farm described in the complaint.” That in the same conversation James Lenox further said : “ He would will the premises described in the complaint to Elwin E. Lenox, providing after his (James Lenox) death he (Elwin) paid Sarah Taylor $500 more, and Frances E. Lenox $2,000; and Ruth Lenox (the wife of James) was to have the life use and control of the farm as long as she lived, and his daughter, Frances E. Lenox, was to have her home there as long as she lived.” The plaintiff further testifies that about two.months after such conversation James Lenox made and executed a will containing the above provisions, which he showed to her. From the time such will was executed in 1888 to 1891, when Elwin died, all the parties resided upon the farm as one family. It does not appear that Elwin formally accepted the proposition so claimed to have been made by his father, nor does it appear that he did anything from which an acceptance could be implied, except that he remained on the farm as before, continuing to pay $100 rent for the same, and made some permanent improvements thereon, put a granary in the barn, a roof on the pig pen, laid flooring in the barn, put a pump in the well, partly built a sugar house, did some ditching, built some fences, etc. Elwin did not by any express agreement obligate himself to pay Mi's. Taylor $500 and Frances $2,000 upon the death of his father, and to give the use and control of the farm to his mother Ruth during her life and to furnish a home thereon for his sister Frances while she lived. According to plaintiff’s version of the transaction the situation and relation of all the parties continued for the three years after such alleged conversation took place and until Elwin’s death, precisely the same as they had been after Elwin and his family had moved on to the farm and before the date of such alleged conversation. The plaintiff, however, testifies: “ We afterwards (after such conversation) paid Sarah A. Taylor $1,500 (being the amount which as she claims they were required to pay by James Lenox). We took a receipt * "" * which reads as follows:

“ ‘ North Collins, October 19th, 1888.
“ ‘ Eeceived of Elwin Lenox $1,500 towards my share out of father’s estate.
« ‘ (Signed) Mrs. SAEAH A. TAYLOR’ ”

Notwithstanding the testimony of the plaintiff in which she says “ We afterwards paid Sarah A. Taylor $1,500,” it appears without contradiction that $1,000 of that sum was paid to the owner of the Washburn farm by the defendant James Lenox ; that no more than $500 of it was paid by Elwin and that what he did pay was obtained by him from the avails of the farm. It seems to me that the language alleged to have been used by the defendant (it does not appear that either Elwin or the plaintiff said a word in response), and the acts of the parties claimed to have been done in pursuance thereof, are altogether too uncertain and indefinite to base a determination by a court of equity that Elwin thereby acquired an interest in the premises in question and such as to constitute a lien thereon, even assuming that the defendant James Lenox conveyed the premises as he subsequently did and thus made it impossible for Elwin to acquire title to the farm under the will which his father had made. Elwin only paid $500 of the $1,500, which represented the difference in value between the Washburn farm, which James Lenox wanted in the family, and the farm then occupied by his daughter Sarah. Elwin had in no manner either by word o'r action obligated himself to remain upon and work the farm until his father’s death, to pay the sum of $2,500 to his two sisters upon the happening of that event, and to furnish a home upon the farm for and support his mother and sister Frances during their natural lives; neither does it appear that he was able to perform any of such obligations.'

Construing the language of the defendant James Lenox and. the acts claimed to have been done pursuant thereto most favorably to Elwin had he been living, we think he would only have had a cause of action at law against his father as for breach of contract. If in such action a contract was established, as claimed, and the father had repudiated it or rendered performance on his part impossible, Elwin would have been entitled to such judgment as would represent the damages sustained by him because of its breach by James Lenox, provided he had performed or was ready to perform the obligations assumed by him. The $500 paid by him, if so paid, would not necessarily measure his damages, but could be considered in determining the value of the contract. There is no suggestion in the complaint or proof that James Lenox has not been at all times perfectly able to respond in damages and to pay any judgment which might be recovered against him, and, therefore, and in viéw of all the facts, no cause of action in equity existed in Elwin’s favor, even if the father had repudiated the contract before Elwin’s death.

The plaintiff, as we have seen, brings this action individually and not in any manner as representative of her deceased husband. She claims to have succeeded to the rights of her husband and to recover the $500 paid by him by virtue of a conversation had with James Lenox a few days after her husband’s death.

The plaintiff testified: After Elwin died James Lenox asked me if I would stay with them. I said ‘ yes, providing you want me.’ He said they needed me worse than before. Then James Lenox said if I would stay and see them through he would do the same by me that he would by Elwin Lenox, said he would make a new will just the same as the first with the exception it would go to me, myself, instead of Elwin Lenox.” That soon after such conversation James Lenox made a will in all respects like the former will, except that plaintiff’s name was substituted for that of her deceased husband; that he showed such last will to the plaintiff and kept it four or five years. Plaintiff testified that after such conversation and after the execution of such last will she was at the head of the household. “I did housework and milking and all such work as goes on a farm. He (James Lenox) kept thirty to thirty-two cows. I milked eight every night and morning; made garden, fed calves, raked hay, drove horse to unload hay, washed milk cans, took care of the chickens, and in the house I did everything, cooking, sewing, making, mending, papering and painting. I continued to do this work up to December 18th, 1898. I went away December 20th, 1898. I staid continuously up to that time. Those services were worth $3.50 or $4.00 per week. I have never had any pay for this work; during all that time James Lenox had no hired help, except a hired man, except four weeks when Ruth Lenox (his wife) was sick.”

Assuming that such conversation took place, that the new will was made in plaintiff’s favor precisely as stated by plaintiff and that she remained and worked upon the farm pursuant thereto, we fail to see how individually she became entitled to the benefits of the contract made between her husband and his father, especially how she is entitled to recover the $500 alleged to have been paid by her husband, and which, with interest, constitutes a substantial part of the judgment appealed from. There was no transfer of Elwin’s interest to the plaintiff, and whatever its amount it belonged to his estate, to be first devoted to the payment of his debts, if any, and then to be distributed in accordance with the provisions of the Statute of Distributions.

But assuming that the last conversation took place as related by the plaintiff, we think it is too uncertain and indefinite upon which to base a finding that she thereby became entitled to an interest in the real estate in question. She did not in any manner obligate herself to perform the conditions imposed upon her by the second will and there is no proof which indicates that she was in any sense able to perform any or either of them. Indeed, she after her husband’s death did not work or manage the farm, did not assume any responsibility respecting it, did not provide for James Lenox or his family; she simply did the work of the household. But it appears that the plaintiff did not remain on the farm and continue to work for James Lenox because of the conversation above quoted. She testifies James Lenox subsequently said, “ If I would stay there he would give me one of those deeds and Frances E. Lenox the other, and so I staid on that ground.” It appears that when the plaintiff finally left the farm she and James Lenox exchanged receipts, she receipting to him for all services rendered by her and he receipting to her for the maintenance and support of herself and daughter. But plaintiff states, in substance, that the receipt so given by her was signed under duress, although she admits both are in her handwriting. But independent of such consideration we conclude that plaintiff’s cause of action against the defendant was one at law and not in equity. That her cause of action, if any, arises because of a breach of contract by the defendant entered into between him and her, and it not appearing that the defendant is not responsible and able to respond in any damages sustained because of such breach, no case is made out for the intervention .of a court of equity. The value of plaintiff’s services should he ascertained in a court of law before a jury. If, in addition, she has sustained damages by breach of contract by defendant, such damages can also be recovered and if any judgment rendered in her favor, therefor is not paid and execution is returned unsatisfied, an action in equity may . be maintained to set aside the conveyance made by James Lenox to his two daughters, if made with intent to hinder, delay and defraud the plaintiff.

There being no proof that James Lenox is not responsible and able to respond in any amount which may be awarded against him because of his alleged breach of contract, we think this action cannot he maintained and that defendants’ motion for a nonsuit should have been granted.

It follows that the judgment appealed from should be reversed and a new trial granted, with costs to appellants to abide event.

■All concurred; Spring, J., on the ground that the judgment is against the weight of the evidence.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  