Gaines v. Kendall

• Decision Date: 21 December 1898
• Citation: 176 Ill. 228,52 N.E. 141
• Parties: GAINES et al. v. KENDALL.
• Court: Illinois Supreme Court

176 Ill. 228

52 N.E. 141

GAINES et al.

v.KENDALL.¹

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from circuit court, Edgar county; H. Van Sellar, Judge.

Bill by Ralph Gaines and another against Henry M. Kendall. From a decree for defendant, complainants appeal. Reversed.

Magruder, J., dissenting.

Eads & Eads and Dundas & O'Hair, for appellants.

H. S. Tanner and J. W. Howell, for appellee.

This is a proceeding in chancery, begun in the Edgar circuit court, to compel the specific performance of a contract to convey a tract of land. The bill alleges that Railph Gaines, one of the complainants, was married to Frankie Kendall in January, 1888; that at that time her father, Henry M. Kendall, who is the defendant, owned a certain 105 acres of land in Edgar county; that, in February following, the defendant gave this land to the complainant Ralph Gaines and his wife, Frankie Gaines, if they would move upon it and improve it and make it their home; that he promised complainant and his wife that he would make them a deed to said land as soon as his youngest son, George, became 21 years of age, which would be December 10, 1896; that his said wife, Frankie, died 14 days before said George became of age; that, at the time defendant gave them said land, they were living on land belonging to the father of complainant; that defendant, on the 6th day of August, 1888, put complainant and his wife, Frankie, into the possession of this land, and told them the land was theirs, and to go on and improve it as they desired; that, from that date to the present, they have held and owned the land; that they have made extensive and valuable improvements thereon; that they bouth other smaller tracts, amounting to 100 acres, adjoining this 105 acres, which had a special value only because they adjoined this tract, and that these purchases were made at the instance of defendant; that in November, 1896, Frankie Gaines died; that she left an infant son, Orville, as her only heir; that, since her death, complainant Ralph Gaines holds the same for himself and the infant son; that, after the wife's death, defendant began to claim some interest in the land, and on December 30, 1897, gave complainant Ralph Gaines notice to quit, and deliver up possession, claiming absolute ownership, and threatening to eject complaints. The prayer is that defendant be required to convey the 105 acres to the complainants in fee simple, and for other general relief. A demurrer was interposed to the bill, but was overruled. Defendant answered, admitting the possession of the land in the complainants, as alleged, but averring that, at the time Frankie Gaines and Ralph Gaines moved onto the land, ‘defendant told them they could have the use of and the right to cultivate said land without the payment of any other rent than the payment of all taxes assessed’ against it, and ‘that they could have the balance of the rent to help them along’; that they entered and held the land as tenants only; and that the improvements made were only such as were needed for their own convenience. The answer also alleges that by a mutual arrangement, after the death of the wife, Ralph Gaines abandoned all claims to the land; and it was arranged that he should be permitted to use and occupy the premises without rent until March 1, 1898. The statute of frauds is set up and relied upon to defeat the agreement to convey, alleged in the bill. A general replication was filed, and much testimony was taken upon the issues thus made up. Upon a hearing, the bill was dismissed, and the complainants appeal.

WILKIN, J. (after stating the facts).

The theory of the appellants is that appellee, soon after the marriage of Ralph Gaines and Frankie Kendall, agreed and promised the former that, if he and his wife would go upon this land and improve it, he would make them a deed to it upon his son (George) becoming 21 years of age, and that, in pursuance of that promise and agreement, they entered into possession of the land, occupying it as their home, and made valuable improvements thereon. This, under the decisions of this court, if established by the proof, is sufficient to entitle the complainants to a performance of the contract. Langston v. Bates, 84 Ill. 542;Bright v. Bright, 41 Ill. 97;Kurtz v. Hibner, 55 Ill. 514;McDowell v. Lucas, 97 Ill. 489;Warren v. Warren, 105 Ill. 568;Smith v. Yocum, 110 Ill. 142. These authorities are full to the effect that, although the contract was a mere verbal one, taking possession under the agreement and making the improvements as alleged will take the case out of the statute of frauds.

The answer and theory of the defense are that no contract or agreement to convey was ever made, but that the complainant Ralph Gaines and his wife were simply permitted to occupy the premises as tenants, without rent, except the payment of the taxes. The testimony of the complainant Ralph Gaines fully sustains the theory of the bill. He testifies that shortly after he and defendant's daughter were married, in 1888, and before they went to housekeeping, he and defendant were passing the farm in controversy, and defendant said, ‘I suppose you have heard what I intend to do for you, but haven't told you;’ that he then said, ‘I will tell you; I will give you and Frankie this 105 acres,’ pointing to it; that he reserved a small corner that he mentioned, then; that he had to get a passageway down to the branch that was running through the 105 acres; that he said he wanted to reserve that until he got a better watering place; that he said, ‘I will not make you a deed to this farm now, but will make you a deed when George becomes of age;’ that George is defendant's youngest son. He further testified: ‘Defendant knew then that I had a place rented, and he said, ‘I wish you could go on to that right now,’-that is, the 105 acres. He said Burkhart had a lease on a part of it, and that I couldn't get possession of that until next year, I had 160 acres rented of my father. I told him I had wheat sowed, and would have to go onto my place. Then he said, ‘I want you to go on this 105 acres just as soon as you can, and go to fixing it up and improving it.’ He said: ‘It is yours, and don't be uneasy; if I should happen to drop off at any time, it is fixed down at Paris.’ He didn't say how it was fixed. He told me to go ahead and improve it to suit myself; that it was mine and my wife's.' It appears that Gaines and his wife then moved on the farm and occupied it about eight years; that they made improvements, by way of remodeling the barn, setting out a new orchard, building fences, etc., and placed the farm in first-class condition. The wife died November[176 Ill. 234]26, 1896, and appellee's youngest son, George, came of age a few days thereafter. Walter Green, who collected the taxes the two years following the marriage, says, speaking of the directions he received from defendant as to the making of tax receipts: ‘He told me these two pieces belonged to Ralph Gaines. These two pieces were...