Harrison v. Harrison et al.
| Citation | 36 W.Va. 556 |
| Parties | Harrison v. Harrison et al. |
| Decision Date | 18 April 1892 |
| Court | Supreme Court of West Virginia |
The first point in the syllabus of Clay v. DesMns supra p. 350 (5 8. E. Rep. 85) is approved and reaffirmed, as follows: "A party s eeking specific performance by a bill in equity must show himself to have been ready, desirous, prompt and eager to perform the contract on his own part, The unreasonable delay of the purchaser, which will preclude a decree for specific performance i n his behalf, is dependent upon the circumstances of the par-ticular case; and, if his conduct has indicated bad faith or a 1 rirtual abandonment of the contract, it will deprive him of all just claim to equitable interposition." Where the plaintiff claims under a parol gift of land, this principle will be still more strictly applied.
A parol promise to give land to another, accompanied by actual celivery of possession, will be specifically enforced where the promisee induced by such promise has paid the taxes and made valuable improvements with the knowledge of the promisor. But, on the other hand, to sustain a parol gift of land as against i he heirs of the donor, there must be clearly shown an executed intent to make the gift, possession taken, taxes paid and im] >rovements made on the faith of such intent.
Where a son goes into possession of his father's land, and makes inexpensive improvements, it is not to be inferred therefrom, in t he absence of other evidence, that the father gave the son the 1 and. Neither are loose declarations of the father, without explai iation, sufficient evidence of a gift. A contract between a parent nd child, from the nature of the relation, requires to be proved by a kind of evidence much stronger than that which might suffice between strangers. The evidence, in case of a parol gift from father to child, should be direct, positive, express and unambiguous, and its terms clearly defined.
If the conduct of the plaintiff has indicated bad faith, or a virtual abandoment of the contract, or a cancellation of the parol gift for a valuable consideration, these circumstances will deprive him of all just claim to equitable interposition.
The court will look at all the circumstances of the case, and will not decree specific performance unless those circumstances render such a decree just and equitable. The plaintiff has the laboring oar, and the defendants are at liberty to prove any circumstances which tend to show the weakness of his cause and the want of equity in his demand; especially in a case like the present, where, by their answer, defendants had given full notice of the facts upon which they meant to rely in their defence.
J. W. Hale and D. E. Johnston for appellant cited 25 W. Va 471; 22 Gratt, 578; 7 Cow. 48; 8 Paige 473; 28 W. Va. 58; Fry Spec. Per. (3d Ann Ed.) 530; 9 Gratt. 1; 19 W. Va. 168
Watts.y Ashby and Chapman A'-Gillespie for appellees cited 8 Pom. Eq. Juris. §§ 1293, 1405; Id. §§ 892, 893, 398, 400; Ad. Eq. s. p. 78; 2 W. & T. Leas. Cas. Eq. 920, 955; Id. 1024; Id. 654; Fry. Spec. Per. 405 (s. p. 805); Code, c. 79, s. 1.
I). E. Johnston for appellees, Newberry et al. cited 17 N. el. Eq. 525; 22 Gratt. 370; 20 W. Va 415; Pom. Eq. Juris. § 1405 n. 3: 9 K J. Eq. 332; 10 W. Va. 706; 6 Gratt, 78; 10 Mo. 786; 1 Sto. Eq. Juris. § 750; 34 Am Dec. 474; 58 Am. Dec. 136; 34 Am. Dec. 474.
Lucas, President:
This was an appeal from a decree rendered by the Circuit Court of McDowell county on the 8th day of July, 1891, in a chancery cause then and there pending, wherein William T. Harrison was plaintiff, and Elizabeth Harrison and others were defenelants. The object of the suit was to enforce the specific execution of a parol exchange of lands situate in McDowell county between the plaintiff, William T. Harrisson, and his father, the late Henry Harrison, by which the plaintiff claimed to have exchanged the Brewster lands with his father for the undivided half of the Mountain Fork lands. Said suit also had for its object the procuring of the legal title to said tract of land from the defendant D. G. Sayers and the heirs of the said Henry Harrison.
It is averred in the bill or petition that in April, 1882, the peti doner was the equitable owner of three tracts and parcels of land situate on Dry Fork, in McDowell county, W. Va., lying contiguous to each other, and composing what was known as the "Brewster Lands," the legal title to which was in Henry Harrison, petitioner's father, and that petitioner resided upon same; that at the same time the said Henry Harrison was the equitable owner of one undivided moiety of a tract of land situate in said county, on the Mountain Fork of Big creek, the other moiety being owned by the defendant 1). G. Savers, the legal title to the whole of said trace being in the said Bayers; that the saiel Mountain Fork trace was wild ami uncultivated land and had no improvements of any kind upon it; that on the day of April,
188$, petitioner made a parol exchange of the said Brewster lands with his father, the said Henry Harrison, for the latter's moiety of the Mountain Fork land, receiving from his father the sum of four hundred dollars in cattle as a difference in the estimated and agreed values of said land; that the said Henry Harrison took immediate possession of the Brewster lands, and sold them to other parties; that petitioner took possession of the Mountain Fork lands in conjunction with the said D. G. Bayers, put tenants on it, cleared a large part of it, fenced it, built a dwelling house upon it, etc., and has remained in actual possession until this time, and is now in possession of it; that Henry Harrison died in 1 87, intestate; and that the legal title to the whole Mountain Fork tract is still in D. G. Bayers. I). G. Bayers, Henry Harrison's heirs at law, and others, who claim as alienees from some of the said Henry Harrison's heirs, are made parties defendant to the bill.
A part of the adult heirs answer denying the exchange as set up in the bill, and alleging that, even if the exchange was nade as charged in the bill, the petitioner subsequently resold the Mountain Fork land to the said Henry Harrison in his lifetime. To this answer there is a general replication. The infant defendants answered by their guardian adlitem. The defendant D. G. Bayers answered, and admitted all the charges in the bill against him. Depositions were taken, and on the 8th day of July, 1891, the case was heard by the Circuit Court of McDowell county, and the bill dismissed. There bad been sides of their interests by several of the heirs of Henry Harrison, and their alienees were made parties.
It further appears that a suit between the heirs of Henry Harrison for the partition of the Mountain Fork land was instituted in the said Circuit Court, to winch Savers was a party, as was also the plaintiff, W. T. Harrison; and that in said suit the laud was partitioned, not only as between Sayers and the heirs of Henry Harrison (Sayers taking one moiety, and said heirs the other) but that they also effected a partition of the moiety of said tract of land among the heirs themselves. The record does not sufficiently show that the latter subdivision between the heirs themselves had ever been completed and recorded as prescribed by chapter 117, sec. 8, Code.
In the case of Clay v. Deskins, supra, p. 350 (15 S. E. Rep. 85) it was held: "A party seeking specific performance by a bill in equity must show himself to have been ready, desirous, prompt, and eager to perform the contract on his own part, The unreasonable delay of the purchaser which will preclude a decree for specific performance in his behalf is dependent upon the circumstances of tie particular case, and if his conduct lias indicated bad faith, or a virtual abandonment of the contract, it will deprive him of all just claim to equitable interposition."
The principle thus announced was applied to a party who held a written agreement for a valuable consideration, a part of which had been paid. How much stronger would be the application of the principle to a. case like the present, in which the object of the bill is to enforce a parol gift of land for a consideration not valuable in law, hut, only that of natural love and affection?
Whether a court of chancery will in any case enforce an unexecuted gift on no valuable consideration is doubtful^ and the elementary writers upon this subject are not entirely in accord. For example, Mr. Fry lays the principle...
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