On the whole proof in this case, some of which is referred to in
the opinion of the Court,
held:
(1) 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
Page 129 U. S. 239
upon the consideration that she should take care of him 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 render it capable of being
enforced by a decree for specific performance.
(3) That the appellee had been guilty of no laches by her delay
in commencing this suit.
Bill in equity to compel a specific performance of a parol
contract to convey a tract of real estate in Wisconsin. Decree in
complainant's favor, from which respondents appealed. The case is
stated in the opinion.
MR. JUSTICE MILLER 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 Oconomowoc, 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
Page 129 U. S. 240
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 lived with his wife in Harlem, in the City
of New York, was a man of some wealth, an 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 he 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, and 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
this cottage to Mrs. Sutton, declaring it to be in accordance with
the request of his wife during her lifetime, as a tribute
Page 129 U. S. 241
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 toward the expenses of
housekeeping. During these years, he made frequent trips to New
York on business connected with the bank of which he was 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
$2,300, 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 the 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
Page 129 U. S. 242
the house 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 Suttons, 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 ยง 858 of the Revised Statutes, and as Mr. Sutton, being her
husband, was also incompetent, it can be readily seen, in the
absence of any written agreement 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, there can be as little
Page 129 U. S. 243
doubt that he erected it for her, with the intention that it
should be her house, expecting to live with the Suttons 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
done, 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 he first
went to Oconomowoc; 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
care 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 case. No person
but Mrs.
Page 129 U. S. 244
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 want of me is my money. Someday they will be
terribly disappointed," and proceeded to 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 it -- 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 in
dispute here, Westover asked Mr. Kenyon about it, and gives his
language as follows:
"He told me 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 be done,
and he had promised her
that he would put a house on the place such as she wanted,
and the place should be 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 he 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 a house thereon as she should want
Page 129 U. S. 245
"
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 promise.
The witness then details a conversation which he had in 1881 in
which Mr. Kenyon reminded him of what he had said to him before on
the same subject, and said that after much thought, he had
concluded that was the best arrangement, and she had agreed to it;
that it was 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 individually, and that he had made
arrangements with her, and she would continue to do for him as she
had done,
and he had promised to buy 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 with 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 was 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 give him, and that he
said on Wednesday before his death 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.
Page 129 U. S. 246
Mr. Small, who lives adjoining the property in dispute, details
a long conversation he had with Mr. Kenyon in regard to the
building of the house, and states that he said: "I am not building
it for myself; I 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 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.' Said I.
'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 out anything 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. Mr. 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 to give it to them. Mrs. Sutton has
been very kind to me in sickness and disease in my family; took
care 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
Suttons; that the property was theirs to all intents and purposes;
that the title was taken in his name when he bought the
property,
Page 129 U. S. 247
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
everyone 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 he 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; that 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, and
they would make it a permanent residence, and he should make it his
home with them whenever he was there.
Page 129 U. S. 248
Celestia Edwards testifies to a conversation with Mr. Kenyon
about the property in which she remarked that they would have 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 a 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 any way 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 so far performed as to
take it out of the statute of frauds.
On the whole, we think that the evidence justifies the inference
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.