Harman v. Harman

• Decision Date: 06 November 1895
• Docket Number: 55.,39
• Parties: HARMAN v. HARMAN (two cases). [1]
• Court: U.S. Court of Appeals — Seventh Circuit

70 F. 894

HARMAN v. HARMAN (two cases). ^[1]

Nos. 39, 55.

United States Court of Appeals, Seventh Circuit.

November 6, 1895

J. N Jewett, E. A. Otis, and Horace S. Oakley, for appellant.

John Lewis, Jesse A. Baldwin, James S. Norton, and A. D. Thomas for appellees.

Before HARLAN, Circuit Justice, JENKINS, Circuit Judge, and BUNN District Judge.

BUNN District Judge.

These causes are bills in chancery to enjoin the collection of certain judgments at law recovered by the executors of Jacob Harman, deceased, against the complainants, and to enforce specific performance of a contract for the conveyance of certain lands situate in Iroquois county, Ill. The two cases stand substantially, though not wholly, upon the same equities, and by consent were heard together; the evidence in each of the cases, so far as applicable, to be considered as offered in the other.

It is alleged by the complainants that they each entered into possession of the land severally described in the bills of complaint under an agreement with Jacob Harman, resting partly in parol and partly in writing, by which they were respectively to take possession of the land in question, which was for the most part unimproved, cultivate and improve the same, and pay an annual rent, to be agreed upon from time to time, to Jacob Harman, during the continuance of his natural life, and also to pay interest upon certain sums of money advanced to them by said Jacob Harman; and that upon his death they were to have as their own the land, as well as the money so advanced; that they entered into possession under such agreement, occupying the land for a series of years, numbering from 10 to 15 years, and until the death of Jacob Harman, on February 23, 1885, cultivating the land so occupied, and making large and valuable permanent improvements thereon, and paying the stipulated rent to Jacob Harman, and in all respects fulfilling their agreement with him, insomuch that the same had at the time of his death become, as far as the complainants were concerned, a fully-executed agreement entitling them to a specific performance of the contract.

A large amount of testimony was taken, mainly of a parol character, tending to support the allegations of the bill. But among the other testimony is a lease in writing of the lands made by Jacob Harman to the complainants, respectively, and which was extended from time to time by the parties. There is no intimation in the lease that there was any other contract existing between the parties, and the court below dismissed the bills, not because the alleged contract was not made and fully executed by the complainants, but because no parol evidence could be received to show that any other relation existed between the parties than that of landlord and tenant as evidenced by the written lease. And, if the case comes fairly within the strict rule of law applied by the court, excluding all evidence of parol testimony showing a fully-executed parol agreement for the conveyance of the land, then the decrees must be affirmed. On the other hand, if it be allowable for this court to consider all the evidence in the case, written and unwritten, in order to determine what the full contract really was under which complainants held, a different result may undoubtedly be reached, and a larger and better equity meted to the parties.

It is nowhere questioned by the court below that a contract, such as is claimed by the complainants, existed in parol, and that it had been fully executed by the complainants through all the years during which they were in possession of the lands, paying the stipulated rent, and making permanent and valuable improvements, partly from money which they made on the lands and partly from money which they borrowed from Jacob Harman for that purpose. But the complainants' bills were dismissed on the ground that the evidence of such agreement and the full execution thereof cannot be considered by the court, because it conflicts with and seeks to change the effect of the written lease. Upon very full and careful consideration of the case this court is of opinion that, instead of the case coming within the rule invoked by the court below, it comes fairly within one of the acknowledged exceptions to that rule, which is that, where the parties make an agreement, partly in writing and partly by parol, and do not profess to reduce the entire contract to writing, but only a certain part thereof, it is competent to show the entire agreement. We think the case comes rather within the rule laid down by Greenleaf, and supported by the adjudged cases, as an exception to the rule followed by the court below, as follows: 'Nor does the rule apply in cases where the original contract was verbal and entire, and a part only of it was reduced to writing. ' See Greenl. Ev. Sec. 284a; 2 Tayl.Ev. §§ 1135-1147; Mann v. Smyser, 76 Ill. 365; Ludeke v. Sutherland, 87 Ill. 481; Bross v. Railroad Co., 9 Ill.App. 363; Ballston, etc., Bank v. Marine Bank, 16 Wis. 125. If this may be done in this case,-- that is, the entire contract be shown,-- as we believe it may, without violence to established rules of law, the court will be in a position to do full justice to the parties according to the real understanding. Indeed, it would rather imply a serious defect and limitation of the inherent powers of a court of chancery if, in the circumstances of this case, as disclosed by the evidence, the court were precluded by a rule of evidence from preventing fraud and doing full justice to the parties according to the facts. As remarked by the court below in its opinion, there is little conflict in the testimony, which goes to show that such an agreement existed as is claimed by the complainants, that it was acted upon and understood all through the deal between the parties, and fully lived up to and executed by the complainants. Jacob Harman was an old man, was never married, and had no children. He was willing, and even eager, to enter into close family relations with the complainants, who were his nephews. He showed a strong desire and will to adopt them as his heirs, and to stand in the relation to them of loco parentis. He was always a thrifty man of property. He was a man of strong will, and with all his desire to benefit his nephews he was very tenacious of doing it in his own peculiar way, and without any particular regard to their wishes. When the relation was entered into, and the boys went on to improve the lands, he insisted upon the contract, so far as it secured any benefit to him, being put into writing, securing the payment of a stipulated rent; while that portion which inured to the benefit of the nephews, and was, indeed, the principal inducement on their part to entering into the arrangement, he was willing should rest in parol, requiring them to take his word, oft repeated, for its performance, which they were willing to do. Sometimes he would intend to carry out his part of the contract by making provisions in his various wills for giving them the lands upon his death. At other times, and on three distinct occasions, he made similar provisions by deeds, which were executed by him, but not to be delivered until his death; thus keeping the reins always in his own hands, and under his own control. His will was always law to the complainants, and he was always tenacious in having them accede in all points to his wishes. But there is no evidence that at any time during his life he ever indicated any other intention than that of giving his nephews the land, until just previous to his death, when he sent to Jacob M. Harman, to have him bring him the envelope containing the deeds of the land, in order to make correction of a mistake; whereupon they were delivered up into his hands, which is the last trace that is had of their existence. The evidence shows that the complainants had implicit confidence in their uncle, and were always ready to bend their wishes to his. They were content that the main contract by which they were to have the land upon his death should rest in parol, not doubting, but fully trusting, their uncle that he would do according to their mutual understanding and agreement, which is proven by so many corroborating proofs as to leave no reasonable doubt of its existence, and the certainty of its terms. The court, in such a case, would not be willing to rest a decree in complainants' favor upon their testimony alone, though competent to be given under the laws of congress, as the claim for specific performance of the contract for the sale of the land is not against the executors, but against the legatees and beneficiaries under the will. But the complainants' testimony is corroborated by a large number of other witnesses, who were the neighbors and friends of both parties, who are wholly disinterested, and who give their testimony in such a way as to leave no reasonable doubt of its truth.

The history of the case is substantially this: Jacob Harman was the brother of Anthony Harman, and for many years resided in Warren county, Ind. His brother Anthony, who is the father of the complainants, and also Oscar P. Harman, Waldo L. Harman John J. Harman, Mrs. Lee, and Mrs. Hamilton, resided in the early 60's in Randolph county, Mo. In 1852, and again in 1860, Jacob Harman visited his brother Anthony, who was then living upon his own farm in Missouri with his boys; among others, the complainants. Having no children, Jacob Harman proposed to take back to Indiana his oldest nephew, Jacob M. Harman, promising to make him his principal heir if he would go home with him to Indiana, and live with him as his son. Jacob M. Harman still being under age, his father declined to let him go until arriving at his majority. Accordingly, Jacob M. continued to...