Johnston v. Tomme , 199 Miss. 337 ( 1946 )

DISSENTING OPINION. The majority holding means, under the pleadings in this case, that an oral agreement to execute a will and leave to the promisee one's estate, real and personal, is binding and enforcible if the promisee performs the agreed services and the will is executed by the promisor, even though such will makes no reference whatever to the oral agreement and is destroyed or revoked by the testator and the property has never been delivered to or taken possession of by the promisee. With all due deference I cannot agree with my brethren in that pronouncement. This court has never held that before. Such an oral promise is an agreement to convey land and as such is within the meaning of our statute of frauds, Section 264, Code 1942, prohibiting the enforcement of a contract for the sale of lands unless ". . . the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing" 49 Am. Jur., p. 539, Sec. 215. This Court has uniformly held that an oral agreement to convey land is not enforcible. Campbell v. Bright, 87 Miss. 443, 40 So. 3; Palmer v. Spencer, 161 Miss. 561, 137 So. 491, and many other cases which might be cited. This includes such agreement to convey standing timber. Harrell v. Miller,35 Miss. 700, 72 Am. Dec. 154; Nelson v. Lawson, 71 Miss. 819, 15 So. 798; Singletary v. Ginn, 153 Miss. 700, 121 So. 820.

This Court has construed the statute strictly and refused to engraft exceptions thereon. Gothard v. Flynn, 25 Miss. 58; Catlett v. Bacon, 33 Miss. 269; Hairston v. Jaudon, 42 Miss. 380; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Tanner v. Walsh., 184 Miss. 147, 183 So. 278.

The memorandum in writing, to take the case out of the statute, must contain the essential terms of the contract. Waul v. Kirkman, 27 Miss. 823; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Kervin v. Biglane, 144 Miss. 666, 110 So. 232; Gulfport C.O., F. Mfg. Co. v. Renau, 94 Miss. 904, 48 So. 292, 136 Am. St. Rep. 607; Taylor v. Sayle, 163 Miss. 822, 142 So. 3; Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1; Paine v. Mikell, 187 Miss. 125, 192 So. 15.

Part performance will not take a parol agreement to sell land out of the statute. Howie v. Swaggard, 142 Miss. 409,107 So. 556; Milam v. Paxton, 160 Miss. 562, 134 So. 171.

This Court is committed to the proposition that such an agreement is unenforcible if the will has not been executed. Wells et al. v. Brooks, Administrator, 199 Miss. 327,24 So. 2d 533. But it is said the mere execution of the will takes the case out of the statute, although it is revoked by the testator and makes no reference whatever to the agreement, and neither the will nor the property was ever delivered to, or in the possession of, the promisee. I don't think this Court has held that. Price v. Craig, 164 Miss. 42, 143 So. 694, involved a written agreement, which, of course, is a different question. The language of the Court in Anding v. Davis, 38 Miss. 574, 77 Am. Dec. 658, is broad enough to so hold but the case does not support the language. The promisor there did actually set up a trust for some of the beneficiaries as he had agreed and the main question was whether a deed absolute on its face could be shown by parol to be a mortgage and mere security for a debt, which can be done. Tanous et al. v. White,186 Miss. 556, 191 So. 278. Too, in the Anding case, the mortgagee was in the actual control and management of the property using the income therefrom with which to pay the debt. In that case, as here, the effort was to fasten upon the property a trust and thereby have it delivered to the promisee, and the court expressly called attention to the fact that the case arose before the enactment of Section 269, Code 1942, requiring declarations of trusts to be in writing and duly recorded to be valid, and this Court has held generally that parol agreements to create a trust are not enforcible. Metcalf v. Brandon, 58 Miss. 841; Horne v. Higgins, 76 Miss. 813, 25 So. 489; Lewis v. Williams, 186 Miss. 701, 191 So. 479. Some of the cases from other jurisdictions appear to support the majority opinion, as shown in annotations in 69 A.L.R. 8, 26, and 106 A.L.R. 737, but upon examination it will be found that most of these either construe statutes differing from ours in material respects, or the courts in that jurisdiction enforce such agreement where there has been full or part performance, or engraft exceptions onto the statute, or the property has been delivered the promisee or his position is such that equity and justice cannot be done him without enforcement of the agreement. The entire foundation drops out of this case when the will fails to say it is made pursuant to the oral agreement and fails to set out the essentials of such agreement. There is no memorandum in writing of any kind evidencing the oral agreement. The entire matter rests on parol. The original agreement is in parol; the fact of the execution of the will and its contents must be shown, as a rule, by parol. The fact that it was executed pursuant to the oral agreement, if such be the case, must be shown by parol.

Refusal to enforce such agreement works no injustice to the claimant. He can recover for the fair and reasonable value of his services. Ellis v. Berry, 145 Miss. 652,110 So. 211; Stephens v. Duckworth, 188 Miss. 626, 196 So. 219. The case at bar illustrates that. Mrs. Tomme claims she cared for Mr. Johnson two and a half years. It is admitted he paid her $45 per month for two years and three months and $50 per month for the last three months. She has filed a claim against the estate for $9,870 in addition to what she has been paid in case she is not awarded his estate. The Court can fix and allow her the reasonable value of her services. She will have suffered no injury. But the dangers of the rule are great. This case illustrates that. It appears the value of this estate is around $25,000. Mrs. Tomme claims it all. If she should succeed she will receive the total value of the estate plus the money Mr. Johnston has already paid her. This is in no way a prejudgment of the case at bar. She may be entitled to it under the announced rule. It is an illustration. Other cases will likely arise where the inequity in value of the services rendered to that of the property received will be a hundred fold greater than this. Again the alleged promisor is gone. He cannot deny the contract nor explain the reasons for his execution or revocation of his will. His estate, though worth many times the value of the services rendered, may be entirely taken from his heirs and dependents, leaving them penniless. It takes away the right of the owner of property to dispose of his property by will. It would be better, in my opinion, to trod the beaten paths in this respect than to wander into brambles and underbrush without a compass. The rule, like Banquo's Ghost, is going to return often to sorely plague us.