Bright v. Bright

• Decision Date: 30 April 1866
• Citation: 41 Ill. 97,1866 WL 4543
• Parties: KESIA BRIGHT et al.v.ALFRED BRIGHT.
• Court: Illinois Supreme Court

41 Ill. 97

1866 WL 4543 (Ill.)

KESIA BRIGHT et al.

v.ALFRED BRIGHT.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Tazewell county; the Hon. S. L. RICHMOND, Judge, presiding.

This was a bill in chancery exhibited in the court below by Alfred Bright against Kesia Bright, the widow, and Harvey Bright and others, the children and co-heirs at law, with the complainant, of Caleb Bright, deceased.

The bill alleges, that, in February, A. D. 1861, Caleb Bright, father of complainant, was the owner in fee simple of the north-east quarter of the north-west quarter of section two, in township twenty-three north, of range three, west of the third principal meridian, and the west part of the north half of the northwest quarter of section three, same town and range, all in Tazewell county, Illinois; and, while so possessed of said real estate, proposed to complainant, if he would go into possession of the same, and make improvements thereon, he, the said Caleb Bright, would convey the said real estate to complainant, by a good and sufficient deed of conveyance; that on or about February 1, A. D. 1861, complainant took possession of said real estate at request of his said father, and made thereon permanent and valuable improvements; that at the time of making said improvements, complainant, not having sufficient money to accomplish that object, borrowed one hundred and seventeen dollars of his said father, and paid the same to the administrator of his said father's estate, after his death; and that complainant has possessed and cultivated said real estate, and is still in possession of the same; that since his possession and occupancy of said real estate, as aforesaid, the said Caleb Bright departed this life, leaving at his decease the defendants as his representatives.

The prayer of the bill is, that a conveyance of the land be decreed to the complainant.

Such proceedings were had that a decree was entered, granting the prayer in the bill.

Thereupon the defendants sued out this writ of error. The questions arising under the assignment of errors are, first, whether the promise was of such character that it can be enforced in a court of equity; and, second, whether the proof sustains the allegation in the bill that the complainant took possession of the land and expended money thereon.

Mr. C. A. ROBERTS and Mr. N. W. GREEN, for the plaintiffs in error, contended that the proof did not sustain the allegations in the bill, which sets up a contract to convey to complainant the land in question, in consideration that he should take possession of the same and make improvements thereon; nothing but an unexecuted parol gift of real estate is established in this case, and that by parol admissions of Caleb Bright, the father of complainant.

“Parol admissions of a party are only competent evidence of those facts which may lawfully be established by parol evidence.” 1 Greenleaf's Ev. 256; Jenner v. Joliffe, 6 Johns. 9.

“A gift of real estate cannot be presumed from a delivery of possession, without a deed of conveyance.” 1 Rich. Ch. 271. “A parol gift of land is inoperative, though possession is delivered to the donee.” Caldwell v. Williams, 1 Bailey Ch. 175; Ridley v. M'Nairy, 2 Humph. 174; Rucker v. Abell, 8 B. Mon. 566; Hugus v. Walker, 12 Penn. (2 Jones) 173.

But giving the complainant the benefit of his construction of the transaction, and calling it a parol contract instead of a gift, and admitting that taking possession under a parol contract is such a partial performance as avoids the statute of frauds, then there remains, as alleged in this bill, the further consideration of making improvements upon the land, which he fails to prove was done by him.

Messrs. COOPER & Moss, for the defendant in error.

The proofs fully sustain the bill.

“It has been settled that, where a parol agreement is proved, under which one of the parties has taken possession, and made valuable improvements, such agreement shall be carried into effect. We see no material difference between a sale and a gift, as it would be a fraud in a parent, to make a gift which he knew to be void, and thus entice his child into the expenditure of money and labor, of which he meant to benefit himself.” Lessee of Tyler v. Eckhart, 1 Binn. 378.

Ford v. Ellingwood, 3 Metc. (Ky.) 359; Haines v. Haines, 6 Md. 435, in which last named case the court says: “To constitute a valuable...