Hunkins v. Hunkins

Allen, J.

The execution of the final contract for the exchange of lands by the conveyance by the plaintiff of his land to his brother Charles in his lifetime, and the plaintiff’s possession and improve *99 ment oí the land agreed to be conveyed to him in pursuance of the contract, was a part performance of the contract by the plaintiff, sufficient to take it from the operation of the statute of frauds, aiid to have entitled him to a decree of specific performance against his brother.

Tilton v. Tilton, 9 N. H. 385, 390;

Johnson v. Bell, 58 N. H. 395;

Seavey v. Drake, 62 N. H. 393.

The plaintiff claims a decree for a deed of all Charles’s interest in the land at the time of the agreement, against the widow of Charles and his heirs, who are defendants. The heirs are willing to make the conveyance, and do not object to the decree. The widow, Anna H. Hunkins, claims that no decree for performance can be made against her, because she stands as a bona fide purchaser, for value, of an undivided share — one ninth. Having waived her right of dower, if any she had, she takes, if at all, by election under the statute, one half of her husband’s interest, after the payment oí debts and expenses of administration. G. L., c.

202, s. 10. She does not take as purchaser, but subject to all the claims and demands existing against the estate, both legal and equitable. Her right is affected in the same way and by the same limitations which circumscribe the right of an heir upon whom land descends by inheritance. Though technically, and in law, not the heir of her husband, the widow waiving her homestead and dower rights, and taking her share in the estate by election under the statute, may be said to take as an heir; and, for all purposes in this case, the defendant, Anna H. Hunkins, may be regarded as one of the heirs of Charles H. Hunkins. Taking as an heir, she had no claim superior to, and which can prevail against, the equitable right of the plaintiff to a conveyance of the land.

No rights of dower became attached to the land in favor of the widow. The agreement to exchange lands, and the performance by the plaintiff by giving a deed of his land to the decedent, and his possession of the land agreed to be conveyed to him, under and according to the agreement, were all before the defendant’s coverture, and the equitable right of the plaintiff to a conveyance acquired by the agreement and the acts of part performance were as effective to bar the right of dower as a legal conveyance of the land in fee before marriage would have been. 4 Kent 49, 50;

Greene v. Greene, Ohio 535. If the right of election to take a portion of the land in fee is a substitute, by statute, for the common-law right of dower, and the right of dower fails or never became appendent to the land, the right of substitution, having nothing to support it, must fail also. The loss of the right of dower by the acquisition of the equitable right to a conveyance was accompanied by a loss of the widow’s right of election to take a fee in the same land.

The facts reported by the referee make the inequitable character of the widow’s claim apparent. Having taken her share and interest in the land conveyed to her husband by the plaintiff, under the *100 agreement for an exchange, if she could now be permitted to take a share in fee of the land in dispute, she would receive a double portion, and enjoy both the fruit and the consideration of the contract, the land bought and the land agreed to be given in exchange. Her ignorance of the facts which constitute the plaintiff’s right, and for which the plaintiff • is in no fault, cannot destroy that right, nor make for her a right which would not exist with knowledge of the claim. She was not misled by any want of knowledge nor by any act of the plaintiff into changing her position, nor into doing anything in the matter she would not have done, with earlier knowledge of the claim. Her ignorance of the valid claim of a creditor against the estate would not prevent its allowance and satisfaction before she could be let into a moiety by electing to take her share in fee; and the plaintiff’s claim for specific performance of a contract made by her husband is as strong, at least, as that of an ordinary creditor. The statement of the widow’s claim and of the attendant circumstances is, when considered in an equitable proceeding, its own sufficient answer.

The facts do not show such laches as constitute a defence to the plaintiff’s claim. He has performed fully’his part of the agreement, and, after the repeated acknowledgment of the agreement by the decedent, and an expression of willingness on his part to execute the deed when tendered, the plaintiff tendered it and execution was refused. The plaintiff’s failure to enforce his claim by a proceeding sooner begun has not operated as a disadvantage to the decedent, nor to his representatives and successors, the defendants. They have enjoyed the fruits of the agreement, and whatever fault there is has been their own, in refusing to perform their part of the agreement.

The plaintiff has no adequate remedy at law. A real action for the land which he conveyed to the decedent cannot be maintained. Relying on his claim for a conveyance of the land according to the terms of the agreement, he prosecuted no claim for money damages. But damages in money would not have been compensation for the loss of his land, and he could not, by any judgment in an action for money damages, have been restored to his former position; and if money damages could have been recovered, and would operate as a payment of the consideration, the settlement of the estate has now proceeded too far to admit of prosecuting a demand at law.

The alternative prayer in the bill for a decree for the value of the plaintiff’s interest in the land conveyed to his brother, under Gen. Laws, c.

198, s.

22, could not be satisfied without further proceedings for the sale of the land in dispute, the administrator here having settled his account and paid out all the estate in his hands. A decree for specific performance would more directly reach the land, save the expense and delay of further proceedings, and more nearly and adequately meet the requirements of justice.

*101 The exception to the referee’s exclusion of Charles Hunkins’s books of account offered to contradict the plaintiff’s evidence, that a note signed by the plaintiff and another brother was not given to the decedent for the plaintiff’s interest in the land in Haverhill, and had been paid, cannot be sustained on any ground appearing from the facts reported. There is no evidence that Charles’s promise to convey the land was on condition of the payment of the note, or to be performed when the note was paid, or that the note was ever the plaintiff’s to pay. It does not appear that the entries in the books had any connection with any facts or transactions material to the case, or that they were relevant to any issue tried before the referee. The exception to the exclusion of this evidence is overruled.

Decree according to the referee’s report.

Caepenter, J., did not sit: the others concurred.