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Clow v. West

July 1914

GRACE CLOW, RESPONDENT, V. N. H. WEST, AS ADMINISTRATOR OF THE ESTATE OF B. G. CLOW, DECEASED, ET AL., APPELLANTS.


Appeal from the Second Judicial District Court, Washoe County; Peter Breen, Judge, presiding.

Cheney, Massey & Price, W. A. Massey, Benjamin Curler, and F. D. King, for Appellants.

James Glynn, for Respondent.

Thomas F. Moran, amicus curiae.

Per Curiam:

This is a suit to enforce the specific performance of an oral agreement to convey real estate and “for such other and different relief in the premises as is meet and agreeable to good conscience and equity.”

The complaint alleged that one B. G. Clow died intestate in the county of Washoe on the 19th day of January, 1902, leaving an estate in said county consisting of real and personal property of the value of more than $50,000; that thereafter, and on the 6th day of February, 1903, the said appellant N. H. West was appointed administrator of the estate of said B. G. Clow, deceased, and has ever since been such administrator. The complaint further allege:

“That on or about the ..... day of July, 1890, the said B. G. Clow was the owner of, and in possession of, the south half of the northwest quarter and the southwest quarter of the northeast quarter of section 10, in township 19 north, range 19 east, M. D. & M., State of Nevada, containing 120 acres more or less, with the improvements thereon, and all water and water rights belonging thereto and used thereon, and was occupying the same as a homestead in company and association of his wife, Mrs. Jessie Clow, and plaintiff herein. That at said time plaintiff was of the age of 19 years, and she expressed to the said B. G. Clow, deceased, her desire, wish, and intention to leave the home of the said B. G. Clow, deceased, where she had resided for several years prior thereto and enter upon independent employment for the purpose of endeavoring to secure a competency of her own, and that thereupon the said B. G. Clow, deceased, earnestly requested and importuned plaintiff to remain with him and his said wife and to assume the control of his and her household and domestic affairs, and counsel with and assist him in the management and conduct of his business affairs, and agreed with the plaintiff that if she would do so, in consideration thereof, and services so rendered, and to be rendered, by said plaintiff, and in consideration

[37 Nev. 267, Page 269]

of the premises, she should then have, and become the absolute owner of, the foregoing real estate and improvements, subject only to a life estate therein and control thereof by the said B. G. Clow and his wife, Mrs. Jessie Clow, and that as a further consideration of said services to be so rendered by plaintiff, and to be rendered by her, and as a full consideration therefor, the said B. G. Clow agreed with plaintiff that, subject to such life estate before mentioned, he would prior to his death convey the said real estate and improvements to plaintiff, by a good and sufficient paper title, and by a good and sufficient deed, and, in the event of his death before so doing, his legal representative, by his last will and testament should be instructed by the terms thereof to execute such a deed and deliver the same to this plaintiff. That thereupon, and in express reliance upon the said promise and agreement, and without further or other consideration, the plaintiff did, in consideration of the premises, enter into and take full possession of all of said premises mentioned aforesaid, under and according to the terms of said agreement, subject to the life estate therein and management thereof of the said B. G. Clow, as before mentioned, and faithfully act as the manager of the household and domestic affairs of the said B. G. Clow, and as his adviser, counselor, amanuensis, and confidant, and being until the plaintiff was of the age of 31 years. That the said Jessie Clow, wife of the said B. G. Clow, deceased, died on or about the 25th day of January, 1900, and left no heirs other than the said B. G. Clow, deceased, and that said real estate hereinbefore mentioned, except in so far as the same was vested in plaintiff aforesaid, was at all times the property of the said B. G. Clow, deceased. That plaintiff, in reliance upon the agreement hereinbefore mentioned, fully performed all her obligations thereunder. That the said B. G. Clow failed, neglected, and omitted to either convey the said real estate and improvements to plaintiff before his death or by his last will and testament to instruct and direct his

[37 Nev. 267, Page 270]

legal representative so to do. That plaintiff, ever since said agreement above mentioned was entered into by and between plaintiff and the said B. G. Clow, entered into and remained in full, quiet, peaceable, open, notorious, adverse possession of said premises as to all the world, save and except the life estate and management thereof reserved by the said B. G. Clow, until the death of the said B. G. Clow, and thereafter, and ever since said death, she has been and is now in said possession of all of said premises, according to the terms of said agreements, excepting in so far as the defendant N. H. West, said legal representative of said deceased, has wrongfully trespassed upon said premises, and against the will of this plaintiff.”

Defendants in their answer filed denied the allegations in the complaint as to the oral agreement for conveyance of the land in question to the plaintiff, respondent herein. For further and separate defenses, defendants set up the statute of frauds and the statutes of limitations, and further that the subject-matter of the action was res adjudicata. the case was tried by the court with the aid of a jury. Certain specific questions were submitted by the respective parties to the jury, which answered all questions as to the oral agreement alleged in favor of the plaintiff. Subsequently the court made and filed findings of its own from which it deduced certain conclusions of law upon which a judgment and decree were entered in favor of the plaintiff; that all right, title, and interest, which the said defendant N. H. West acquired by operation of law, as administrator of the estate of B. G. Clow, deceased, in and to the land and premises in controversy, be, and the same is, hereby by this decree vested in Grace Clow in fee simple and absolute, and further that all right, title, and interest of the other defendants, as heirs of law of B. G. Clow, deceased, be, and the same is, hereby by this decree vested in Grace Clow in fee simple and absolute, and further vesting all legal and equitable title whatsoever in the plaintiff. It was further ordered and decreed that the defendants are personally enjoined from

[37 Nev. 267, Page 271]

claiming, holding, or asserting any power or authority over or concerning said lands or premises or from making, executing, or delivering any conveyance of said property and in any manner interfering therewith.

The court found, among others, the following facts:

“That plaintiff is an heir at law of B. G. Clow, deceased, now of the age of 36 years, and from the year 1890 until the death of B. G. Clow plaintiff resided with the said B. G. Clow upon said premises, at his solicitation and request. That plaintiff had a joint equitable possession of said premises with B. G. Clow from the year 1890 until his death. That plaintiff had the sole, exclusive, equitable possession of said premises from the death of B. G. Clow on January 19, 1902, until the appointment of N. H. West as administrator on February 11, 1902. That in July, 1890, or thereabouts, the plaintiff, Grace Clow, expressed her intention to B. G. Clow to leave said ranch, to make her living elsewhere. That at the time plaintiff informed B. G. Clow of her intention to leave said ranch in July, 1890, or thereabout, B. G. Clow made and entered into an oral agreement with the plaintiff, Grace Clow, that if she would remain with himself and wife on said Home Ranch, and assume control and management of his household and domestic affairs, and counsel and assist him in the management and conduct of his business affairs, and act as his adviser, counselor, amanuensis, and confidante until the death of himself and wife, she should then have and become the absolute owner of said premises, improvements thereon, water, and water rights connected therewith, subject to a life estate in B. G. Clow and his wife; and that he would, prior to his death, convey the same to plaintiff, or that, if he failed to so convey in his lifetime, he would cause the same to be conveyed to her by his last will and testament; and that said agreement is the same agreement set forth in plaintiff's complaint herein. That Grace Clow consented to and relied upon said agreement and remained upon said ranch, performing personal, domestic, and other services for B. G. Clow from July, 1890, until his death

[37 Nev. 267, Page 272]

on January 19, A. D. 1902. That the wife of B. G. Clow died about two years prior to his death. That the personal, domestic, and other services rendered by Grace Clow to B. G. Clow from July, A. D. 1890, until his death on January 19, A. D. 1902, were wholly referable to and pursuant to the said agreement made between them in July, A. D. 1890. That, upon the death of B. G. Clow, Grace Clow had fully performed her agreement with B. G. Clow. That the services so rendered to B. G. Clow by the plaintiff were not by B. G. Clow intended to be paid for by a money consideration, or any consideration other than the conveyance of said premises to Grace Clow by the said B. G. Clow by his deed, or by his last will and testament. That Grace Clow has ever since the death of B. G. Clow remained upon said ranch, occupying it as her home, and in the equitable possession thereof subject to the statutory possession of N. H. West as administrator. That the services rendered by plaintiff to B. G. Clow were largely of a peculiar personal nature, incapable of being estimated in damages. That N. H. West, as administrator supervising the farming of said ranch and the gathering of the crops thereon each season since the death of B. G. Clow, paid the expenses thereof, and paid all taxes due thereon. That all the acts and doings of said N. H. West, pertaining to said premises, were done pursuant to his duty as administrator, and not otherwise.”

Certain other findings were requested by counsel for defendants which it will not be necessary to set out, as the questions thus presented will be discussed later in the opinion.

The first question in logical order to be considered is whether the defense of res adjudicata can be sustained. It appears from the finding requested by defendants and allowed by the court that, prior to the institution of the present action, a suit upon the same alleged oral contract was instituted against the same defendants; that an answer to the complaint was filed, and that the case proceeded to trial before the court with the aid of a jury;

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that the plaintiff submitted her proofs and rested her case; that thereupon the defendants moved the court to withdraw the suit from the jury and have a judgment of non-suit; that upon such motion the following order was entered: “The motion of defendants to withdraw the jury and discharge the jury was ordered granted. ...


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