Cutsinger v. Ballard
| Decision Date | 29 May 1888 |
| Docket Number | 13,244 |
| Citation | 17 N.E. 206,115 Ind. 93 |
| Parties | Cutsinger et al. v. Ballard |
| Court | Indiana Supreme Court |
From the Johnson Circuit Court.
The judgment is affirmed, with costs.
J. L White, W. J. Buckingham, T. W. Woolen and D. D. Banta, for appellants.
R. M Miller and H. C. Barnett, for appellee.
Julia A. Cutsinger and others, as plaintiffs, alleged in their complaint that they were tenants in common with John Ballard and his co-defendants, of certain real estate in Johnson county, of which Taylor Ballard, their common ancestor, died seized. Prayer for partition according to the respective interests of the parties.
The defendant John Ballard set up by way of cross-complaint that he was in possession, and was the equitable owner under a contract made with his father, Taylor Ballard, in his lifetime, of a certain described tract of land which was embraced in the description of the real estate which the plaintiffs were seeking to have partitioned. He asked for the appointment of a commissioner to convey the land to him, and for a decree quieting his title.
The court made a special finding of the facts, and stated conclusions of law thereon.
So far as respects the issues tendered by the cross-complaint, the findings and conclusions were favorable to the cross-complainant. The facts material to be stated were, that John Ballard attained his majority in the year 1853, at which time his father agreed with him that if he would remain at home and work on the farm he would pay him a reasonable compensation in land. The appellee remained as requested, and worked for his father until the year 1859, rendering services which the court finds to have been reasonably worth $ 1,440. At that time his father agreed to convey the land described in the cross-complaint to him as compensation for the services theretofore rendered. The land was unimproved woodland, worth about $ 1,000. The appellee agreed to accept it as full compensation for his work, and, in reliance upon the promise of his father, went into possession, and cleared, fenced and ditched the land. He also erected a house, barn and other out-buildings, making valuable improvements of a lasting and permanent character of the value of $ 2,000. He remained in possession continuously ever since, claiming title to the land and using it as his own, his father all the while recognizing his title and claim. Taylor Ballard died in January, 1885, without having made a deed. Without questioning the propriety of the conclusions of law stated, the appellants contend that the evidence does not support the finding of facts.
Starting with the proposition that the contract, being in parol, must be adjudged void unless the evidence shows that it was taken out of the operation of the statute by some of the exceptions allowed by courts of equity, the appellants insist that there was no proof that the appellee took possession of the land in dispute under a contract of sale, or that the improvements were made by him in pursuance of any contract. It is insisted, moreover, that there was no clear and satisfactory evidence of a contract between the father and son, and that the court was not, therefore, justified in finding the facts as returned.
It is undoubtedly the rule in cases like the present, that specific performance of an oral contract to convey land will not be decreed, unless the terms of the contract are either admitted or established by clear, definite and satisfactory evidence. The party seeking to enforce performance must prove the contract substantially as laid in his pleading, by satisfactory evidence, and he must in like manner show such a part performance on his part of the identical contract set up, and such acts done in reliance thereon, as that injustice would be done and a fraud perpetrated if the contract were held inoperative under the statute of frauds. Purcell v. Miner, 71 U.S. 513, 4 Wall. 513, 18 L.Ed. 435; Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Lobdell v. Lobdell, 36 N.Y. 327.
Courts of equity have adopted the foregoing as the rule of evidence in cases for specific performance of oral contracts, and if at the end the evidence leaves it a matter of conjecture whether there was a contract, or if its terms are left uncertain, or if the possession or acts of part performance are not clearly referable to the contract, a decree for specific performance ought to be withheld. Green v. Groves, 109 Ind. 519, 10 N.E. 401.
In the present case it is shown by the testimony of a number of witnesses, that Taylor Ballard declared again and again that the tract of land in dispute belonged to his son John; that he had given it to him as compensation for six years' work performed after he had become of age. It is not disputed that the appellee worked for his father for the period mentioned, nor is it denied that he entered upon the land in 1859, and made the improvements as found by the court, and that he continued in the open and notorious possession for more than twenty-six years before the commencement of the suit, during all of which time he claimed and used...
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