Welch v. Whelpley

Campbell, C. J.

This was a bill filed to obtain specific performance of an agreement claimed to have been made by defendant, father of complainant Eleanor Welch, whereby he agreed, in substance, that if his son-in-law and daughter would settle down on the premises in question, near him, he would convey them the land.

As complainants represent the matter, Mrs. Welch was, when quite young, — about 16 or 17 years old, — sought in marriage by one Bannon, and defendant promised that if she would marry Bannon he would give her this land, and help improve it. She married Bannon, and something was *19 done towards improving the land. But the marriage was subsequently broken up, and she continued to live with her father and mother, who then had a son also, much younger, named Eugene Whelpley.

In August, 1868, Eleanor was married to Thomas C. Welch, who had done some work for defendant, and who also worked more or less elsewhere. . .

In the spring of 1869, Welch obtained employment from one Newcombe, in another town, some sixteen miles away, and had an offer of steady employment, which he thought it was for his advantage to accept. Thereupon it is.claimed defendant, who wished to keep his daughter near him, proposed to give them this fifty-five acres of land, and help them to improve it, if they would settle down upon it, and live there, and give up the Newcombe arrangement.

Complainants aver that they acted on and accepted this proposal, and settled on the farm, and it has ever since been their home. They claim, further, that in 1876 defendant desired, and they allowed him, to remove or sell timber enough to repay him the original price which he paid for the land, which cost $600, but has been made, vyithin a few years, more valuable by the construction of a railroad near 'by.

Complainants, by their own testimony and that of Eugene Whelpley and Mary Whelpley, the former wife of defendant, made out, as we think, very positively the substance of •the case relied on. Defendant admits by his testimony the inducement held out to keep his daughter near him, and his anxiety and offer to have them make a home upon the land ; but he denies promising to convey it until his death, when he proposed, in his own mind, to divide his property, giving each child one of his farms.

In 1881 defendant’s wife separated from him, and got a divorce for ili-treatmeut, and at that time it is claimed, and we think appears, that the divorce was supposed to throw a difficulty in the way of a conveyance. Afterwards, however, she arranged matters so as to quitclaim her dower right. Defendant, nevertheless, refused to convey.

*20 So far as the facts are concerned, we think complainants' case made out. Their story is much more reasonable than defendant’s. It is not at all likely that a young, industrious man would break up his opportunities of employment, and settle down, as complainant did here, upon what was practically no inducement whatever. Defendant is evi. dently a very positive and somewhat domineering man, who was attached to his daughter, and anxious to have her near him, and willing, if he could have his own way, to be helpful in many ways. It was natural and proper that she should reciprocate this desire. But it is not at all likely, and it would not be creditable, that her husband should merge his condition and prospects in such a way as to have no'assurance whatever that he would reap any reward for his labors and sacrifices.

The principal difficulty in the case is in the somewhat vague character of the dealings of the parties, and in the fact that concessions were now and then made which are claimed now to have indicated there was no contract.

It is objected, in chief, that the contract as shown did not fix any time for the continuance of the residence, or any extent for the improvements to be made on the land.

The contract was, substantially, that Welch should give up any other engagement, and come and settle down upon the property. This, while somewhat vague, and, if unperformed, difficult of adjustment, is not, however, altogether indefinite. It must be considered in the light of ordinary conduct.

When a man makes his home in a particular place he does not thereby absolutely make it his residence for life, or for any fixed period. That is a man’s home which, for the time at least, he does not contemplate changing, and which he expects to retain, unless some event not then in view may make it desirable or necessary to give it up. This contract, which, for what was beyond doubt in the eyes of the parties an important and valuable consideration, called on complainants to fix their home on the land in question, was fulfilled when they did so in good faith. It is a purely theoretical *21 inquiry what length of time was necessary to put this intention beyond dispute, for the occupancy has been permanent, and mainly continuous. It would have been an unusual course to stipulate for any particular length of residence, because all parties, no doubt, considered that the family affection which prompted ,the movement would continue to influence their common action. The contract was substantially fulfilled when the settlement became fixed.

The fact that it was a family arrangement explains sufficiently both the acquiescence in leaving the property unconveyed, and the allowance.of a good deal of unreasonable action by defendant. It is evident that on both sides a great ■deal was done which the contract never required to be done* and some things were put'up with which defendant could not have demanded. A daughter cannot be treated as a stranger would be, and children often submit to unreasonable requests of parents without deeming it necessary to protest against it. In the long run, matters are apt to balance, unless there is a family disturbance. In our view, the rights ■of these parties became fixed many years ago, and cannot now be unsettled by subsequent submissions or exactions, unless designed as a waiver.

The objection for want of mutuality is not of any force, when the part of the contract difficult of enforcement has been actually fulfilled. As no legal remedy would be at all adequate, the remedy in equity must prevail, unless there is some other obstacle.

The objection that laches should prevent' relief has no force here, inasmuch as, until after the divorce proceedings, both parties evidently treated the complainants’ rights alike; and, where there is continued acquiescence, no serious harm is done by delay to seek relief. In the case of Ingersoll v. Horton, 7 Mich. 105 , the delay was quite as long as in the present case.

There is, we think, no force in the objection that this land was already the property of Eleanor Welch before the alleged contract. There is no doubt in our minds that it was promised her; but the promise was within the statute of *22 frauds, and there was no sufficient performance to take it out, and she made no such claim. ■ There was a double difficulty, the agreement being concerning lands, and also in consideration of marriage; and it has always been held that marriage could not take the contract out of the prohibition, because it is the very thing, in contemplation of the law, requiring the formality of the writing to evidence the undertaking.

Mrs. Welch made no claim inconsistent with the present one, and her former imperfect equities cannot destroy her present ones.

We do not think there is any reason why the agreement should not be carried out.

The decree must be reversed, and relief granted as prayed, with costs throughout.

The other Justices concurred.