U.S. Supreme Court
Townsend v. Vanderwerker, 160 U.S. 171 (1895)
Townsend v. Vanderwerker
Argued November 20, 1895
Decided December 16, 1895
160 U.S. 171
A court of equity in the District of Columbia may take jurisdiction of a bill brought against the administrator and heirs of an intestate alleging a verbal agreement between the intestate and the plaintiff by which the plaintiff was to contribute one-half of the cost of a tract of land and of a dwelling house to be erected thereon, and the intestate, after entering on the property, was to convey to him a half interest therein, chanroblesvirtualawlibrary
and setting forth his performance of his part of the agreement, and her repeated recognition of her obligation to perform her part thereof, and her death without having done so after having mortgaged the property for a debt of her own, and praying for an accounting, and a decree directing payment to the plaintiff of one-half of the value of the real estate and improvements, and a sale of the same, and the court may decree specific performance of so much of the contract proved as can be enforced, and compensation to the plaintiff in damages for the deficiency.
While the mere payment of the consideration in money in such case is insufficient to remove the bar of the statute of frauds, such payment, accompanied by an entry of the other party into possession under the contract, is such a part performance as will support a bill like the present one.
The question of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but upon whether, under all the circumstances of the particular case, the plaintiff is chargeable with a want of due diligence in failing to institute proceedings earlier, and under the peculiar circumstances of this case, the bill is not open to the defense of laches.
The bill in this case is not open to the charge of multifariousness.
This was a bill in equity to recover one-half the value of a certain piece of real estate in Washington, with the house thereon standing, of which one Julia R. Marvin died seised, together with a like proportion of the rents of the said house and lot received by Mrs. Marvin during her lifetime or due and unpaid since her death.
The amended bill, which was brought against the heirs at law of Julia R. Marvin, the administrator of her estate, and the trustee named in a deed of trust of the property in question, averred in substance that said Julia R. Marvin was seised in fee and possessed of a certain lot of land upon Sixteenth Street, in the City of Washington; that she died on February 3, 1889, intestate as to her real estate, and that letters of administration were granted by the probate court to the defendant Hood.
After several immaterial averments as to the relationship of the several defendants, the execution of a trust deed to secure the payment of $10,000, the collection of rents by the intestate, Marvin, and her administrator, the bill averred, in substance, as follows:
That in March, 1879, an agreement was entered into between chanroblesvirtualawlibrary
the plaintiff and Mrs. Marvin by which he agreed to contribute in money and in labor one-half of the original cost of the said parcel of land and a dwelling house to be erected thereon, and in consideration thereof Mrs. Marvin agreed to convey to him a half interest in the land and dwelling house, so that the same should be owned jointly by himself and Mrs. Marvin;
"that at the time of making said agreement, there was no note or memorandum thereof in writing, but in performance of the same on his part the plaintiff gave his personal attention and supervision to the selection and purchase of the materials for the said dwelling house and the erection of the same,"
and also expended the sum of $4,000 in defraying the cost of the house; that this agreement, although not reduced to writing, on account of the intimate personal relations existing between the parties and the entire confidence they reposed in each other, had been fully performed by the plaintiff, the amount of money contributed by him, and the value of his services in selecting and purchasing the materials for the dwelling house and in superintending the erection of the same being equal altogether to one-half the cost of the land and house; that Mrs. Marvin died without having executed her part of the agreement by conveying to the plaintiff the half interest in the land and house, although she had repeatedly recognized the claim in her lifetime, and had declared to plaintiff and others that she had made adequate provisions for the same in her last will and testament; that the services of the plaintiff were rendered in the years 1879 and 1880, and the money paid by him in defraying the cost of the house and land was paid during the years 1879, 1880, 1881, 1882, 1883, and 1884, in various sums to Mrs. Marvin, and sent to her in drafts by mail, as is evidenced by her repeated acknowledgments to him and others during her lifetime, and by certain checks endorsed by her.
That from the time of the rendition of the said services and the payment of the said money by the plaintiff in performance of his said agreement until the day of the death of the said Julia R. Marvin, the plaintiff constantly and repeatedly urged her to come to a settlement with him, and to perform her part chanroblesvirtualawlibrary
of the agreement by conveying to him a one-half interest in the parcel of land and the dwelling house erected thereon; that she always, whenever the subject was referred to, recognized and acknowledged the validity and justice of the claim, and assured the plaintiff that she had provided for the same in her last will and testament; that on the 4th day of January, 1888, she
"admitted to a mutual friend that the house never would have been built but for the fact that she and the plaintiff had built it together, and that he had taken the management of it all, as she never could have done and never would have attempted; that he had paid her in all $4,000, which she had used; that such was her feeling towards him that she intended the house should be his when she was done with it, and should belong to them jointly while she lived; that on the 14th day of November, 1887, she acknowledged to the same mutual friend that the plaintiff had, since 1878, when the lot was bought and they began planning for the house, up to 1883, paid her $4,000; that she had always regarded the house as belonging to them jointly; that she intended it should be his at her death, and that her will, then written, had so provided;"
that on account of her repeated and constant acknowledgment of the validity of his claim by her, and on account of the representations hereinbefore referred to as having been made to the said mutual friend and others, which representations were communicated to the plaintiff, and on account of the intimate personal relations always existing between them, and the unlimited confidence he reposed in her, they having lived together for a long time in the same dwelling house, and she having treated and spoken of him as a foster child, the plaintiff failed and omitted to take such measures for the enforcement of his rights as, under ottreated and spoken of him as a foster child, the plaintiff failed and omitted to take such measures for the enforcement of his rights as, under other circumstances, he would have taken. The plaintiff averred that by the course adopted by her, and without any fault on his part, he had been lulled into a false security, and that he would have instituted his suit during her lifetime for the specific performance of her contract but for the assurance, repeatedly made to him and to others, that she had by her will devised the entire property to him; that the chanroblesvirtualawlibrary
plaintiff did not know until the death of Mrs. Marvin of her failure to carry out her agreement, when he learned to his surprise that she had died intestate as to her real estate.
The prayer of the bill was that an account might be taken of the debt claimed by the plaintiff to be due him; an account of the debt due to White, in whose favor the trust deed had been executed, and of other debts and demands against the estate; an account of the value of the lot and house and of other real estate of which Mrs. Marvin died seised; an account of the rents received by Mrs. Marvin during her lifetime and since her death, and for a decree directing payment to the plaintiff of a sum equal to half the value of the house and lot and of the rents received or due, for a sale of the house and lot for the purpose of paying the same, and for a distribution of the residue of the proceeds among those entitled thereto as next of kin or heirs at law.
A demurrer was interposed to this amended bill, which was sustained by the supreme court, and an appeal taken to the general term, by which the decree of the special term was affirmed, and the bill dismissed. 20 D.C.197. Plaintiff thereupon took an appeal to this Court. chanroblesvirtualawlibrary