Clancy v. Flusky

• Decision Date: 19 October 1900
• Citation: 187 Ill. 605,58 N.E. 594
• Parties: CLANCY v. FLUSKY.
• Court: Illinois Supreme Court

187 Ill. 605

58 N.E. 594

CLANCY

v.FLUSKY.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Error to circuit court, Cook county; Charles E. Fuller, Judge.

Suit by John J. Flusky against James F. Clancy. Decree for complainant. Defendant brings error. Affirmed.

Magruder, J., dissenting.

Bastrup & O'Neill, for plaintiff in error.

James F. Casey and D. T. Smiley, for defendant in error.

CARTWRIGHT, J.

In November, 1891, John Flusky commenced an action of forcible detainer against the defendant in error, John J. Flusky, to recover possession of a farm of 292 acres in McHenry county. There was a judgment against John J. Flusky before the justice of the peace, and he appealed the cause to the circuit court. On July 25, 1892, said John J. Flusky filed his bill in said circuit court against said John Flusky and the plaintiff in error, James F. Clancy, to enjoin the action of forcible detainer, and for a specific performance of an alleged oral contract for the conveyance to him of said farm. Complainant alleged that the defendant John Flusky was his father; that in September, 1887, said John Flusky agreed that if complainant would rent his own farm, and move upon the farm in question, and cultivate and improve the same, and furnish a home to his said father as long as he should desire such home, he would convey the land to complainant; that complainant accepted said agreement and proposal, took possession, made improvements, and performed the contract on his part; that said John Flusky resided with complainant, and he furnished him with board, lodging, and care, until October, 1891, when he left complainant's home without cause; and that on July 29, 1892, said John Flusky made a conveyance of the land to James F. Clancy for the pretended consideration of $10,000, while complainant was in open possession of the premises as owner of the same. John Flusky answered, denying that he was the father of complainant, and denying the contract and making of improvements, and alleged that complainant moved upon the premises to assist in improving and tilling the same at complainant's own suggestion, for which he was to pay complainant a reasonable compensation, either in a share of the crops or otherwise; that he resided with complainant until he was compelled to leave on account of his treatment; and that he had conveyed the premises to the defendant Clancy for a good and valuable consideration. Clancy, in his answer, also denied the making of the contract, and the making of improvements by the complainant, and alleged that he had paid $10,000 for the property. Both answers set up the statute of frauds as a defense to the alleged oral contract. Replications were filed to the answers, and the cause was referred to a special master in chancery. The defendant John Flusky died in December, 1894, after a part of the testimony was taken. On October 25, 1897, defendant Clancy filed his cross bill, alleging that his codefendant, John Flusky, was dead, and that, not being a party to the forcible detainer suit, he could not obtain affirmative relief except by cross bill. He prayed for a writ of restitution of the premises, as grantee of John Flusky. John J. Flusky answered the cross bill, and a replication to the answer was filed. A special master reported in favor of complainant, finding that complainant was the legitimate son and only heir of John Flusky, that the contract was made, and that complainant performed his part of it, except so far as prevented by John Flusky leaving his home without any reasonable cause. He recommended a decree setting aside the deed to the defendant Clancy as a cloud upon the title of complainant, and granting the relief prayed for in the original bill. The cause was heard on exceptions to the report. The first exception was that the master erred in finding that the complainant was the legitimate son of John Flusky, but this exception was afterwards withdrawn, so that the finding of the fact cannot be questioned, and is not open to further investigation. The court overruled the remaining exceptions, confirmed the report, and entered a decree dismissing the cross bill of Clancy, and declaring complainant, John J. Flusky, the owner in fee simple of the premises.

On the question whether the alleged contract was made, the direct evidence consisted of the testimony of complainant and his daughter that it was made, and of the defendant John Flusky denying it, and testifying that complainant moved upon the farm without any agreement of any sort. There was some evidence of admissions by the complainant that he went on the farm without any agreement, and these alleged admissions he denied. It was proved that after the complainant moved on the place the defendant John Flusky frequently said to different persons that the place and everything there belonged to complainant, and that he had given the farm to him. Considering all the evidence and the attendant circumstances, we conclude that the facts established by the proofs are as follows: In September, 1887, John Flusky owned the farm in question, and was...