Burgess v. Burgess

• Decision Date: 19 December 1922
• Docket Number: No. 14984.,14984.
• Citation: 137 N.E. 403,306 Ill. 19
• Parties: BURGESS v. BURGESS et al.
• Court: Illinois Supreme Court

306 Ill. 19

137 N.E. 403

BURGESS

v.BURGESS et al.

No. 14984.

Supreme Court of Illinois.

Dec. 19, 1922.

Bill by Mollie E. Burgess against Curtis L. Burgess and another. Decree for complainant, and defendants appeal.

Affirmed.

Appeal from Circuit Court, Henry County; William T. Church, judge.

Lawrence C. Johnson and Albert E. Bergland, both of Galva, for appellants.

Edward S. Stickney, of Galesburg, and Dyer & Dyer, of Hoopeston, for appellee.

CARTWRIGHT, J.

The appellee, Mollie E. Burgess, filed her bill in equity in the circuit court of Henry county against the appellants,Curtis L. Burgess and William E. Burgess, in their own right as heirs at law of Thomas Burgess, deceased, and as executors of his last will and testament, praying for the specific performance of an alleged oral contract for the conveyance of an 80-acre tract of land made by Thomas Burgess to his son Luther, the deceased husband of appellee. The bill was answered with a denial that the contract was made, or, if made, that there was such performance by Luther as would take it out of the statute of frauds. The issues were referred to the master in chancery to take the evidence and report his conclusions of law and fact. The master took the evidence and returned it to the court with his findings in favor of complainant as to each of the issues. The cause was heard by the chancellor on exceptions to the report, which were overruled, and a decree was entered requiring the defendants to execute a deed to the complainant, or, in case of their default, the master in chancery should execute such deed. An appeal was allowed to the defendants and perfected.

The questions to be answered are whether the alleged contract was proved and whether there was such performance as would take it out of the statute of frauds, and the question of law whether the obligation of Thomas Burgess ceased at the death of Luther and the contract then came to an end.

Thomas Burgess owned three 80-acre farms, and had put his sons Curtis L. and William E. Burgess, the defendants,each in the possession of a farm. He lived on the farm in question here, with his wife, his son Luther, and his daughter, Lena. On November 20, 1894, Luther married the complainant, and Thomas, with his wife and daughter, moved from the farm to a home in Woodhull and turned over the possession of the farm to Luther. The contract alleged was that Thomas then promised Luther that he would give him that farm if Luther and his wife would occupy it, pay the taxes, and improve the farm for their home, and that he would deed it to him so that he would have the title at the death of Thomas.

If Thomas made the oral promise alleged to convey the farm to Luther so that he would have the title after the death of Thomas if Luther would live upon it, improve it with lasting and permanent improvements, and pay the taxes, and Luther took possession of the land and performed the contract on his part, equity will enforce a specific performance of the contract. Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665;Wood v. Thornly, 58 Ill. 464;Langston v. Bates, 84 Ill. 524, 25 Am. Rep. 466;Bohanan v. Bohanan, 96 Ill. 591;Warren v. Warren, 105 Ill. 568;Smith v. Yocum, 110 Ill. 142;White v. White, 231 Ill. 298, 83 N. E. 234;Harlan v. Harlan, 273 Ill. 155, 112 N. E. 452;Fletcher v. Osborn, 282 Ill. 143, 118 N. E. 446, L. R. A. 1918C, 331;Aldrich v. Aldrich, 287 Ill. 213, 122 N. E. 472;Mayo v. Mayo, 302 Ill. 584, 135 N. E. 90.

[2] The contract must be established by proof which is clear, definite, and unequivocal, and unless a court of equity is well satisfied of the existence of the contract and the substantial justice of the demand, relief will be denied, and where the contract is by a father to convey land to a child, the evidence is to be considered in view of the relation between the parties, which might indicate possession either under a contract or permissively as a benefit to the child. Shovers v. Warrick, 152 Ill. 355, 38 N. E. 792;Geer v. Goudy, 174 Ill. 514, 51 N. E. 623;Seitman v. Seitman, 204 Ill. 504, 68 N. E. 461;Standard v. Standard, 223 Ill. 255, 79 N. E. 92;Ranson v. Ranson, 233 Ill. 369, 84 N. E. 210;Daly v. Kohn, 234 Ill. 259, 84 N. E. 901.

There can be no question but that there was some sort of agreement or understanding between Thomas Burgess and Luther when Thomas left the farm with his family and moved to Woodhull and Luther took possession and commenced making improvements. That the agreement then made was as claimed by the complainant, both parties being dead, could be proved by declarations of the parties together with evidence of acts and conduct by them showing that the agreement was, in fact, made. Willis v. Zorger, 258 Ill. 574, 101 N. E. 963;Kane v. Hudson, 273 Ill. 350, 112 N. E. 683; Mayo v. Mayo, supra; Aldrich v. Aldrich, supra. It was proved by a number of witnesses that Thomas told them that the farm was Luther's; that he had given the place to Luther...