Franklin v. Tuckerman

• Decision Date: 21 April 1886
• Citation: 68 Iowa 572,27 N.W. 759
• Parties: FRANKLIN v. TUCKERMAN AND OTHERS.
• Court: Iowa Supreme Court

68 Iowa 572

27 N.W. 759

FRANKLIN

v.TUCKERMAN AND OTHERS.

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Black Hawk circuit court.

Action in equity to enforce the specific performance of a contract. Defendants are the heirs at law of Sarah A. Franklin, who died seized of the property in question on the ninth day of October, 1884. Sarah A. Franklin was the widow of Simeon Franklin, who died in 1881, and she acquired title to the property by a conveyance and assignment executed by her husband in 1875. She was the second wife of said Simeon, and plaintiff is his daughter by the first wife. By the conveyance and assignment under which Sarah A. held the property the husband transferred to her all of his property, personal and real. It is alleged in the petition that these conveyances were made upon the promise by Sarah A. that she would, at her death, reconvey the property to plaintiff and her brother, who were the only children of said Simeon, and that before her death she had, in part performance of this promise, conveyed a portion of the property to plaintiff's brother. It is also averred that after the death of Simeon the said Sarah A. being in feeble health, and unable to care for herself and her business, promised and agreed with plaintiff that, in consideration that she would remain with her and care for her and her property during the balance of her life, she would convey to her, before her death, all the property which she acquired from her husband; and that, in pursuance of this promise and agreement, plaintiff did remain with and nurse and care for her, and did manage and care for her business and property, up to the time of her death; but that her death occurred suddenly, and the agreement to make the conveyance was never performed. The prayer of the petition is for judgment compelling the specific performance of these two agreements. The defendants denied the making of the contracts alleged in the petition. The circuit court entered judgment as prayed for in the petition, and defendants appeal.Nichols & Burnham, for appellants.

Boirs, Hunter & Boirs, for appellee.

REED, J.

Counsel for plaintiff do not claim that they have proven a contract between Simeon and Sarah A. Franklin for the conveyance by the latter of the property to plaintiff and her brother; but they claim to recover on the alleged contract between plaintiff and Sarah A. Franklin for the conveyance by the latter of the property to plaintiff in consideration of her services in nursing and caring for her, and in attending to and caring for her business and property. The alleged contract was in parol, and the effort of plaintiff has been to take the case out of the statute of frauds by proving a part performance of the agreement. Counsel do not disagree as to the rules of law applicable to the case. It is conceded by both parties that before plaintiff will be entitled to recover she must establish the alleged parol contract by clear and unequivocal testimony; also that she must prove that the acts relied upon as a part performance of the contract were done in pursuance of it, and are referable exclusively to it. It is insisted by counsel for defendants that neither the making of the contract nor its part performance is established by the quantum or character of evidence required by these rules.

It...