Clark v. Clark

• Decision Date: 27 September 1887
• Parties: CLARK and OTHERS v. CLARK.
• Court: Illinois Supreme Court

122 Ill. 388

13 N.E. 553

CLARK and OTHERS

v.CLARK.

Supreme Court of Illinois.

September 27, 1887.

Appeal from McDonough county; CHARLES J. SCHOFIELD, Judge.

Prentiss & Baily, for appellants.

C. F. Wheat and D. G. Tunnicliff, for appellee.

MAGRUDER, J.

This is a bill filed by appellee in the circuit court of McDonough county for the specific performance of an alleged parol contract for the sale of land. The circuit court decreed the relief asked for, and the case is brought before us by appeal from that decree.

John P. Clark, the father of appellee and 11 other children, owned in his lifetime 400 acres of land, including 80 acres bought by him in 1878. The 80 acres were situated in Bethel township, in said county, and known as the Bethel farm. John P. Clark died testate on October 18, 1883. He made a will dated August 17, 1883, and probated in the county court of McDonough county on October 22, 1883. By his will he gave and devised all his real and personal estate to his widow, Mary Clark, one of the appellants herein, and mother of appellee, during her natural life. Appellee moved upon the Bethel farm with his wife and children on or about April 8, 1878, and lived there from that time until the filing of this bill, on December 22, 1884. The bill alleges that, in the fall of 1880, John P. Clark agreed with his son Jacob, the appellee herein, that if the latter would not move to Iowa, but would remain on the Bethel farm, and give his father one-third of the crop raised thereon so long as his father should live, he, Jacob, should have the farm. This is the contract which is sought to be enforced.

The contract is, of course, void under the statute of frauds, because it is not in writing, unless there has been such a part performance as to take it out of the statute. The bill was answered by the widow and five of the sons and one of the daughters of the testator, all devisees under the will; and in their answers they deny the making of the contract, and plead the statute of frauds. The specific performance of a parol contract for the sale of land will not be enforced by a court of equity, unless, in additionto the other requisites hereinafter named, such contract is established by competent proofs, to be clear, definite, and unequivocal in its terms. The evidence in this case shows that in the fall of 1880 some difficulty or misunderstanding occurred between the appellee and his father, as a result of which appellee announced his intention of leaving the Bethel farm, and going to Iowa. He changed his mind, however, and remained. A number of witnesses swear that after this time they heard John P. Clark say that he told his son Jacob that he would ‘give’ him the Bethel farm if he would not go to Iowa. None of them testify that what they thus heard was said in the presence of appellee. A number of other witnessess swear that, after appellee concluded not to go to Iowa, they heard his father say that he was going to ‘deed’ or ‘convey’ the farm to Jacob, or that he told Jacob he was going to deed or convey it to him. Only one of these testifies to hearing anything said upon the subject when both appellee and his father were present. Rebecca Mathena says that once, in Jacob's yard, Jacob said to her that his father would deed the place to him, and that his father at the time was standing about 15 or 20 feet away, yet made no response, and did not confirm the statement of his son. Testimony given years after the conversations testified to took place, as to what John P. Clark said about his intention to give or deed his son a farm, or as to his statements of what he told his son upon that subject, does not establish a ‘clear, definite, and unequivocal’ contract between him and his son. A court of equity will not execute the expressed ‘intention and expectation’ of a father to give his son a farm, unless such ‘intention and expectation’ have ripened into and become embodied in a definite agreement. Cassel v. Cassel, 104 Ill. 361.

In Bailey v. Edmunds, 64 Ill. 125, where this court affirmed a decree of the circuit court of Bond county dismissing a bill for the specific performance of an alleged verbal agreement by a father, the defendant, to convey 190 acres to his daughter, one of the complainants, testimony was introduced of a similar character to that which appears in this record. In the opinion in that case the following language is used: ‘Aside from the testimony of the complainants, there is no evidence of the alleged contract, save statements of the defendant testified to by quite a large number of witnesses in different casual conversations had with him, to the effect that he had given or intended to give, or that he had conveyed, or would convey, to his daughter the land on which she lived.’

A valid agreement must be supported by a good or valuable consideration. There was no consideration whatever for the alleged contract by John P. Clark to give appellee his Bethel farm. It is not claimed or pretended that appellee ever paid his father a dollar of money, or performed for him the labor of a single day, towards the purchase of the farm. He was not to pay any taxes, nor did he pay any either before or after his father's death. He was to give his father one-third of the crops raised upon the land during the old man's life. But by doing so he merely paid what was less than a fair rent for the farm. The testimony is uncontradicted that the 80 acres could easily have been rented for two-fifths of the crop. When appellee was making his arrangements to go to Iowa, John P. Clark actually rented the place to one William Miller upon an agreement that the latter should give two-fifths of the grain raised.

Appellee was not materially injured by a failure to perform the alleged contract, nor does the testimony show any such acts of performance on his part as would compel him to suffer an injury amounting to a fraud, in case the supposed contract should not be executed. Wallace v. Rappleye, 103 Ill. 229;Wood v. Thornly, 58 Ill. 464. It does appear that when he was preparing to go to Iowa, in September, 1880, he sold some of his property. He...