Bohanan v. Bohanan

• Decision Date: 31 December 1878
• Citation: 3 Ill.App. 502,3 Bradw. 502
• Parties: ELMER BOHANAN ET AL.v.MAJOR S. BOHANAN.
• Court: United States Appellate Court of Illinois

3 Ill.App. 502

3 Bradw. 502

ELMER BOHANAN ET AL.

v.MAJOR S. BOHANAN.

Appellate Court of Illinois, Second District.

December Term, 1878.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding. Opinion filed May 2, 1879.

Mr. J. K. COOPER and Mr. N. E. WORTHINGTON, for plaintiff in error; on the power and duty of a court of equity to correct a mistake, cited Broadwell v. Broadwell, 1 Gilm. 599; Ruffner v. McConnell, 17 Ill. 217; Story's Eq. Jur. § 161; Kenselbrach v. Livingston, 4 Johns. Ch. 145; Hunt v. Rousmaniere, 1 Pet. 13; Rider v. Powell, 4 Abb.; Hunter v. Bilyeu, 30 Ill. 368; Clearwater v. Kimler, 43 Ill. 272; Mills v. Lockwood, 42 Ill. 111; Briegel v. Moeller, 82 Ill. 257; Moore v. Munn, 69 Ill. 591; McLennan v. Johnson, 60 Ill. 306; Long v. Hartwell, 34 N. J. 116; Goltra v. Sanasack, 53 Ill. 456; West v. Madison Agr'l Board, 82 Ill. 205; Hunt v. Frazier, 6 Jones' Eq. 90; Clayton v. Freet, 100 Ohio, 544; Ex. Bank v. Russell, 50 No. 531; Wheeler v. Kirtland, 23 N. J. Eq. 13.

Part performance will take the case out of the Statute of Frauds: Hawkins v. Hunt, 14 Ill. 42; Ramsay v. Liston, 25 Ill. 114; Deniston v. Hoagland, 67 Ill. 265; Adkinson v. Tanner, 68 Ill. 247; Parkhurst v. Van Courtland, 14 Johns. 15; Freeman v. Freeman, 43 N. Y. 34; Annam v. Merritt, 13 Conn. 479; Farrar v. Patton, 20 Mo. 81; Peckham v. Berkham, 8 R. I. 17; Wood v. Thornley, 58 Ill. 464.

Delivery of or entry into possession with consent of the vendor, in pursuance of the contract, will entitle the vendee to specific performance: 1 Leading Cas. in Eq. 1045; Eaton v. Whitaker, 18 Conn. 222; Tilton v. Tilton, 9 N. H. 386; Allen's Est. 1 Watts & Serg. 383; Pugh v. Good, 1 Watts & Serg. 56; Johnson v. Glancy, 4 Blackf. 94; Haugemont v. Pomeroy, 7 C. E. Green, 119.

So if a child enters into possession and makes improvements under a parol promise from the father to convey: Kurtz v. Hibner, 55 Ill. 514.

Making valuable improvements is a good consideration for the promise: Bright v. Bright, 41 Ill. 97; Lessee of Tyler v. Eckhart, 1 Binn. 378; Ford v. Ellingwood, 3 Met. (Ky.) 359; King's Heirs v. Thompson, 9 Pet. 204; Young v. Glendening, 6 Watts, 509; Wood v. Thornley, 58 Ill. 464.

A parol gift followed by acts or expenditures by the donee which render a revocation of the gift unjust or inequitable, will be upheld and enforced: 1 Leading Cas. in Eq. 1047; Sace v. Henry, 39 Ind. 414; Galbreath v. Galbreath, 1 Kan. 402; Syler v. Eckardt, 5 Binn. 308; Young v. Glendenning, 6 Watts, 309; Mahon v. Baker, 2 Casey, 519; Atkinson v. Jackson, 8 Ind. 30; Renker v. Abell, 8 B. Mon. 566.

A contract not obligatory when made, may be enforced at the suit of one who has changed his position for the worse on account of the offer: Lansing v. Cole, 3 Green Ch. 228; France v. France, 4 Halst. 650; Young v. Paul, 2 Stockt. ch. 402; Vesy v. Sevy, 13 How, 345; Adams' Eq. 86; Old Colony R. R. Co. v. Evans, 6 Gray, 26.

Promise to deed if grantee will improve, when condition is complied with, will compel specific performance: Perkins v. Hadsell, 50 Ill. 216.

Time is not of the essence of the contract, unless expressly so stipulated: Snyder v. Spaulding, 57 Ill. 480; Dasel v. Jordan, 104 Mass. 407; 2 Lead. Cas. in Eq. 1112.

A recovery may be had notwithstanding a failure to comply within the time fixed, unless it was intended to act as a condition precedent and avoid the contract if not fulfilled: Martin v. Lamb, 7 T. Rep. 5; Roach v. Dickinson, 9 Gratt. 156; 2 Smith's Lead. Cas. 23.

Mr. GEORGE PUTERBAUGH, for defendant in error; that the allegations and proof must correspond, cited Taylor v. Merrill, 55 Ill. 52; Crank v. Trumble, 66 Ill. 428.

A resulting trust is not founded on a contract: Stephenson v. Thompson, 13 Ill. 186; Holmes v. Holmes, 44 Ill. 168; Williams v. Brown, 14 Ill. 201; Reeve v. Straw, 14 Ill. 97; Loomis v. Loomis, 28 Ill. 454; 4 Kent Com. 305; Perry v. McHenry, 13 Ill. 227; Fleming v. McHale, 47 Ill. 282; Remington v. Campbell, 60 Ill. 516; Walter v. Klock, 55 Ill. 362.

A resulting trust can only arise at the time of the conveyance, and from the fact that money has been paid by one and conveyance made to another: Alexander v. Tams, 13 Ill. 221; Rogers v. Murray, 3 Paige, 398; Perry v. McHenry, 13 Ill. 227; Greene v. Cook, 29 Ill. 186; Bruce v. Roney, 18 Ill. 67; Lear v. Choteau, 23 Ill. 39; Sheldon v. Harding, 44 Ill. 68; Lantry v. Lantry, 51 Ill. 458.

Evidence to sustain a resulting trust must be clear and satisfactory: Mahoney v. Mahoney, 65 Ill. 406; Wilson v. McDowell, 78 Ill. 514.

Verbal understandings between the parties will not create a trust: Allmon v. Pigg, 82 Ill. 149; Rogers v. Simmons, 55 Ill. 76.

A voluntary agreement for the creation of a trust will not be binding so long as it remains executory: Padfield v. Padfield, 68 Ill. 210; Same case, 72 Ill. 326; Perry on Torts, § 98.

Relief from a mistake in fact will only be granted upon clear and satisfactory proof: Ruffner v. McConnel, 17 Ill. 217; Hunter v. Bilyeu, 30 Ill. 228; Selby v. Geies, 12 Ill. 69; Broadwell v. Broadwell, 1 Gilm. 599; Miner v. Hess, 47 Ill. 170; Moore v. Munn, 69 Ill. 591; Mills v. Lockwood, 42 Ill. 111.

Relief will not be granted from mistakes in the intention of only one of the parties: Ruffner v. McConnel, 17 Ill. 217; Sutherland v. Sutherland, 69 Ill. 481; Wilson v. Byers, 77 Ill. 76; Emory v. Mohler, 69 Ill. 221; Frye on Specific Performance, § 505.

To justify reformation of an instrument on the ground of mistake, the evidence must be clear and satisfactory: Shay v. Pettes, 35 Ill. 360; McDonald v. Starkey, 42 Ill. 442; Palmer v. Converse, 60 Ill. 313; Cleary v. Babcock, 41 Ill. 271; Goltra v. Sanasack, 53 Ill. 456; Emory v. Mohler, 69 Ill. 221; Magnusson v. Johnson, 73 Ill. 156; Owen v. Blake, 44 Ill. 135; Price v. Karnes, 59 Ill. 276; Remington v. Campbell, 60 Ill. 516.

Even had Bohanan done everything but formally deliver the deed, the locus pœnitentiæ would remain, and a court would not enforce a delivery: Hoig v. Adrian College, 83 Ill. 267.

To enforce a verbal agreement to convey land, the proof must be clear and strong: Bailey v. Edmunds, 64 Ill. 125; Allen v. Webb, 64 Ill. 342; Hartwell v. Black, 48 Ill. 301; Gosse v. Jones, 73 Ill. 508.

A purchaser must have done everything on his part before he can ask a court to compel a conveyance: Cronk v. Trumble, 66 Ill. 428; McCabe v. Crosier, 69 Ill. 501; Mix v. Balduc, 78 Ill. 215; Phelps v. Ill. Cent. R. R. Co. 63 Ill. 468; Kimball v. Tooke, 70 Ill. 553; Brink v. Steadman, 70 Ill. 241; Walker v. Douglas, 70 Ill. 445.

Where conditions are not performed within five months after the time stipulated, without any excuse therefor, a specific performance will be precluded: Mix v. Balduc, 78 Ill. 215; Hedenberg v. Jones, 73 Ill. 149.

Specific performance is in the discretion of the court, and will not be decreed as a matter of course: Bowman v. Cunningham, 78 Ill. 48; McCabe v. Crosier, 69 Ill. 501; Fish v. Leser, 69 Ill. 394; Phelps v. Ill. Cent. R. R. Co. 63 Ill. 468; Lear v. Choteau, 23 Ill. 39; Alexander v. Hoffman, 70 Ill. 114; Ralls v. Ralls, 82 Ill. 243; Iglehart v. Vail, 73 Ill. 63; Gosse v. Jones, 73 Ill. 508; Proudfoot v. Wightman, 78 Ill. 553; Roby v. Cossitt, 78 Ill. 638; Taylor v. Merrill, 55 Ill. 52; Sutherland v. Parkins, 75 Ill. 338.

Upon the question of a gift: Cranz v. Kroger, 22 Ill. 74; Pope v. Dodson, 58 Ill. 360; Walton v. Walton, 70 Ill. 142; Wadhams v. Gay, 73 Ill. 415; Badgley v. Votrain, 68 Ill. 25; Hoig v. Adrian College, 83 Ill. 267.

The parol agreement was within the Statute of Frauds: Perry v. McHenry, 13 Ill. 227; Fleming v. Carter, 70 Ill. 286; Magnusson v. Johnson, 73 Ill. 156; Blount v. Tomlin, 27 Ill. 93; Updike v. Armstrong, 3 Scam. 564; Stevens v. Wheeler, 25 Ill. 300; Thornton v. Heirs of Henry, 2 Scam. 219; Shirley v. Spencer, 4 Gilm. 583; Laird v. Allen, 82 Ill. 43; Mason v. Bair, 33 Ill. 196; Keys v. Test, 33 Ill. 316.

Possession, to take the case out of the statute, must refer to the contract relied upon: Story's Eq. Jur. § 762; Wood v. Thornley, 58 Ill. 464; Holmes v. Holmes, 44 Ill. 168; Peckham v. Berkham, 8 R. I. 17.

Payment of the purchase money is not sufficient to take the case out of the statute: Temple v. Johnson, 71 Ill. 13; Cronk v. Trumble, 66 Ill. 428; Story's Eq. Jur. § 760.

Possession must be accompanied by improvements and expenditure in consequence of the promise: Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 Ill. 514; Wood v. Thornley, 58 Ill. 464.

The agreement could not be performed within a year, and hence was within the Statute of Frauds: Olt v. Lohnas, 19 Ill. 576; Wilson v. McDowell, 78 Ill. 514; Comstock v. Ward, 22 Ill. 248; Warner v. Hale, 65 Ill. 395; Curtis v. Sage, 35 Ill. 22; Wheeler v. Frankenthal, 78 Ill. 124.

LELAND, J.

The questions of fact in this case have been so thoroughly and exhaustively argued, that we could but repeat what has been so well said if we were to give a detailed statement of all the circumstances tending to prove the conclusions of fact at which we have arrived.

Major S. Bohanan and his wife, and their son, James W. Bohanan, and his wife, were occupants of a dwelling house on the farm of the father, near Peoria. The farm was cultivated by the son, who was to account for one-half the proceeds as rent. For some reason, probably because the relations between the two females were so inharmonious as to render the joint occupancy unpleasant, James was disposed to seek relief from his supposed or real annoyances by emigrating to Nebraska. If he went, Hovenden, the father of his wife, promised to furnish him with a thousand dollars to start him in Nebraska. The father of James then agreed that if James would give up his contemplated removal and remain at home, he would purchase for him a forty-acre tract of land adjoining the home-farm and separated by the road only. So far all agree. There is, however, this difference between the parties to the suit: The father...