1921.]

Stark, Executor, v. Turner.

VALIDITY OF ORAL AGREEMENT FOR CONVEYANCE OF LAND.

Common Pleas Court of Hamilton County.

EDGAR STARK, EXECUTOR AND TRUSTEE UNDER THE WILL of MARY ANN BRITT, DECEASED, V. DAISY ORR TURNER.*

Decided, April Term, 1921.

Home Given to Niece as Wedding Gift, but no Deźd Passed—Recovery of Possession Sought by Heirs of the Donor Twenty Years Later-Competency of Declarations Made by Donor in Her Lifetime-Statute of Frauds Not Applicable to Oral Ageements for Conveyance of Land, When-Laches.

1. Declarations made by a deceased donor of land are competent when offered by the donee in defense of his title, but contrary statements by the donor fall within the prohibition of self-serving declarations and are inadmissible in evidence.

2. An oral agreement for conveyance of land is taken out of the statute of frauds and is enforcible in Ohio where there has been a part per formance; and possession, even without the making of improvements, is such part performance, the only requirement being that whatever has been done shall be clearly referable to some contract relating to the specific land.

3. A party in possession can not be charged with laches, and where permanent improvements have been made and taxes and assessments paid by him, his failure to assert title until suit has been brought to dispossess him of the property does not give validity to the claim that his assertion of title was not made seasonably.

Hackett & Yeatman, for plaintiff.

Buchwalter, Headley & Smith, for defendant.

MATTHEWS, J.

The plaintiff, claiming to be the legal owner and entitled to the immediate possession of the east half of lct No. 107 of the Rose Hill Park Subdivision, Cincinnati, Hamilton county, Ohio, filed his petition in this case to recover possession thereof from the defendant, and for mesne profits.

* A similar judgment was entered in the Court of Appeals on the resoning and authorities found herein.

Stark, Executor, v. Turner.

[Vol. 23 (N.S.)

The defendant filed an answer and cross-petition, and in her cross-petition alleged, among other things, that the plaintiff's testatrix in her life time, in contemplation of the defendant's marriage, made a gift by parol of said real estate to the defendant, placed the defendant in possession, which possession the defendant had held for about twenty years, during which time she and her husband had made permanent improvements on said real estate and paid the taxes and street assessments.

The prayer of the cross-petition is, that the court decree specific performance of said parol gift, and that the defendant's title to said lands be quieted against the claim of the plaintiff. The plaintiff replied denying the gift, and alleging the defendant had been guilty of laches.

Clara Dixon and Blanche Partridge McCarty, beneficiaries under the will of Mary Ann Britt, and entitled to one-third of the estate, have been made parties and have joined in the prayer of the petition. The other beneficiaries entitled to two-thirds of the estate, have conveyed their interest, if any, to the defend

ant.

The cause came before the court upon the issues raised by the defendant's cross-petition, evidence was offered, and said issues were submitted for decision by the court upon the law and the facts.

At the trial the court admitted evidence of declarations by Mary Ann Britt, the plaintiff's testatrix, offered by the defendant to prove the intention to make the gift. The court excluded evidence offered by the plaintiff of declarations made by said testatrix during her life time, the purport of which was that she spoke of the real estate in question as her property.

In admitting these declarations offered by the defendant, and excluding those offered by the plaintiff, the court followed the rule laid down in the early case of Tipton v. Ross, 10 Ohio Rep., 273, in which the court at page 274 said:

"While one holds the title, the admissions he makes may be given in evidence against him and against his privy. The heir, pursuing the estate of his ancestor, takes his right and interest, incumbered by all that rests against it, before descent. If this deed had been set up against John Ross, the father, while hold

1921.]

Stark, Executor, v. Turner.

ing the land, his own admissions would have been competent evidence; they are equally competent when offered against his heir."

Such declarations are only admitted in evidence as admissiens against interest, and the declarations of an ancestor or testatrix are admitted in evidence against the person who is seeking to assert a right in the stead of the ancestor or testatrix; such ancestor or testatrix standing thus in privity with the litigant asserting the right, the declaration stands on the same basis as though the litigant himself had made it. It is therefore admissible against, but not in favor of such party.

In the case of Ogden v. Dodge County, 97 Ga., 461, the court. had before it the double aspect of a case under facts almost identical with that of the case at bar, and held as stated in the syllabus:

"Declarations by a donor of land in favor of his own title, made after he has delivered possession of the same to the donee, are not admissible in evidence against the latter. Declarations of a donor against his title and in favor of that of the donce bind the donor and his privies in estate, and consequently are admissible in the donee's favor against one who derived title from the donor after the declarations were made."

The same rule was applied in the recent case of Hayes v. Hayes, 136 Minn., 389. And the same rule is stated textually in 22 Corpus Juris, 356 and 357, under division IX, which is headed "Admissions" commencing on page 296. In defining admissions on page 296, the author says:

"More accurately regarded, they are statements by a party or someone identified with him in legal interest, of the existence of a fact which is relevant to the cause of his adversary.

At pages 356 and 357 the author classifies the declarations of a predecessor in title as a species of admissions or declarations against interest.

So it is the opinion of the court that these declarations of Mary Ann Britt during her life time were only competent as admissions against interest in favor of the defendant, and when

Stark, Executor, v. Turner.

[Vol. 23 (N.S.)

her declarations were offered by the plaintiff standing upon her rights they fell within the prohibition of self-serving declarations, and were therefore incompetent.

The basis of the admission of declarations by a prior owner of real estate was stated by our own Supreme Court in the recent case of McAdams v. McAdams, 80 O. S., 232 and 236.

The defendant asserting a right against the personal representative of the decedent to have her title quieted against the claim of the decedent's estate, and to have a specific performance of an oral agreement decreed, the degree of proof required as stated in the case of Merrick v. Ditzler, 91 O. S., 256, is:

"If the defense is made by the personal representatives of a deceased person, the contract, whether in writing or parol, must be established by clear and convincing proof."

Without stating in detail the evidence, but testing it by the degree of proof required, the court has concluded that the evidence offered proves the following facts:

That in the spring of 1899 the defendant was engaged to be married to William L. Turner, and in contemplation of that marriage Mary Ann Britt, who was the defendant's aunt, made. up her mind to give to the defendant a home as a wedding present, and in pursuance of that intent after having inspected several houses, concluded to give to the defendant the house and lot which is the subject matter of this action. Accordingly Mary Ann Britt and the defendant went to Albert H. Mitchell and negotiated for the purchase of the house. At the time of the purchase Mrs. Britt stated to Mr. Mitchell that she was buying it to give to the defendant; and at the time of the execution of the deed gave as a reason for the insertion of her name as grantee, not that she was postponing the gift, but that for certain personal or family reasons the purchase was being consunated in the name of Mrs. Britt. Immediately upon the purchase of this property the keys were delivered to the defendant. and she and her husband took possession and have held uninterrupted and exclusive possession ever since. The defendant was married on May 31, 1899, and she and her husband have ever since occupied the property and used it in the same sense

1921.]

Stark, Executòr, v. Turner.

that absolute owners occupy and use property. The title on the tax duplicate standing in the name of Mrs. Britt, the tax bills went to her, but the defendant's husband regularly reimbursed her for the taxes paid, and in addition paid all street assessinents. The evidence also shows that they have kept the premises in repair, and in addition thereto have expended money in improvements and betterments of a kind that would be done by the owner of property, but not by a tenant. During the early years of the occupancy of this property by the defendant, the defendant and her husband contemplated buying the west half of the lot of which the premises in question are a part, and at that time Mr. Turner went to Mrs. Britt and told her that he contemplated buying the west half of the lot, but owing to the building restriction preventing only one house being constructed upon a lot, that he hesitated about buying the west half because of the legal title to the east half not standing in the name of his wife; thereupon Mrs. Britt told him that the east half belonged to the defendant, that she had given it to her, and that he should have no uneasiness about it, and to go ahead and buy the west half of the lot, which he thereupon did.

Shortly before Mrs. Britt's death, as well as at various other times between 1899 and 1910, Mrs. Britt stated to other persons that she had given this property to Mrs. Turner, that the reason she did not execute and deliver a deed was that she did not want certain of her relatives to know of the gift, and that she had prepared a deed transferring the property to the defendant, which was to be delivered to her upon the death of Mrs. Britt. However, neither this deed to the defendant, nor the deed from the Mitchell estate to Mrs. Britt was found among her papers after her death, and at that time the record title to the property still stood in the name of the Mitchell estate, although there had been a transfer upon the tax duplicate from the Mitchell estate to Mrs. Britt.

This evidence by witnesses whose trustworthiness the court can not doubt, shows that there was a gift in praesenti, and delivery of possession of the subject matter of the gift to the donee, who has ever since been in exclusive and uninterrupted