Lay v. Lay
| Decision Date | 27 May 1905 |
| Citation | 87 S.W. 1026,75 Ark. 526 |
| Parties | LAY v. LAY |
| Court | Arkansas Supreme Court |
Appeal from Marion Circuit Court in Chancery ELBRIDGE G. MITCHELL Judge.
Affirmed.
Judgment affirmed.
Wood Bros., for appellant.
Delivery of possession of land to the vendee under a parol contract of purchase takes the case out of the statute of frauds, and possession for the statutory period is sufficient. 42 Ark 246; 30 Ark. 340; 39 Conn. 98; 85 Ky. 666; 93 Ky. 435; 55 Miss. 681; 6 Met. 337; 35 L. R. A. 835. A parol gift or sale will constitute color of title. 1 Am. & Eng. Enc. Law, 279; Acts 1899, p. 135. Declarations of the vendor, made subsequent to the sale and in the absence of the vendee cannot be admitted to impeach the sale. 6 Ark. 109; 24 Ark. 11; 9 Ark. 91; 14 Ark. 304. The decision of the chancellor is only persuasive. 43 Ark. 307; 50 Ark. 185; 55 Ark. 112; 42 Ark. 521; 31 Ark. 85.
J. F. Henley and Rose, Hemingway & Rose, for appellees.
To establish an interest in, land acquired by parol contract, the evidence must be full, clear and convincing. 64 Ark. 157; 48 Ark. 169; 40 Ark. 157; 11 Ark. 82; Pom. Sp. Perf. § 136. The chancellor's finding will be sustained unless clearly against the weight of the evidence. 44 Ark. 216; 68 Ark. 314; 33 Ark. 208. Declarations of the owner of property as to title to it are competent, but not conclusive, evidence. 59 Ark. 303; 20 Ark. 592; 1 Green. Ev. § 109; 14 Ark. 505. The statute will not run in favor of one tenant in common as against co-tenants until he gives notice of an adverse holding. 42 Ark. 289; 61 Ark. 528.
The facts in this case are that one Jesse D. Lay died in Marion County, Arkansas, in 1897. He was an old man, and left several adult children. At the time of his death he was the owner of a tract of land in that county containing one hundred and sixty acres. Previous to his death he had been drawing a pension from the Government of twelve dollars a month, but when he died he owned no property except this land and a few dollars in money. During the five or six years that preceded his death he made his home with his son, Shelby Lay. After the death of his father, Shelby Lay claimed that he had in 1892 made a contract with his father by which his father agreed to give him the land he owned in consideration of an agreement on his part that he would furnish him a home and take care of him, for the remainder of his life. But his father never executed any deed, and after he died this action for specific performance of the contract was brought by Shelby Lay against the other heirs of his father. The defendants denied that their father ever made such a contract. On the contrary, they alleged that, though he had been urged to do so, he refused to convey the land to plaintiff.
The chancellor found against the plaintiff, and dismissed the complaint for want of equity. After consideration of the evidence, we are of the opinion that the judgment should be affirmed.
The contract under which plaintiff claims the land was not in writing, and this is an effort to establish an ownership in land by parol evidence. To take the case out of the statute of frauds, which requires that such contracts should be in writing, plaintiff undertakes to show that there had been a part performance of the contract, and that possession of the land had been delivered to him by his father. But, in order for possession to have any such effect, it must be clearly shown that it was taken under the contract of purchase.
Now plaintiff did not move on or make any valuable improvements upon the land, and the possession that he claims to have exercised over the land was to rent it to a tenant who, without paying rent, remained on the land up to the death of the father of the plaintiff. During all this time his father lived with plaintiff. He was old and infirm, and it was not unnatural that his son should look after his business. For this reason the nature of the possession and control taken by the son over this land is a little uncertain. It may have been in his own right, or it may have been, as the other heirs allege,...
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...of modification out of the statute of frauds, but such part performance, in order to do this, must be referable solely to the contract. 75 Ark. 526; 63 Ark. 100. The rule attempted be invoked by counsel for Arkmo Lbr. Co. in its supplemental brief is not applicable to facts of this case, it......
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...the case of Lay v. Lay, 75 Ark. 526, 87 S.W. 1026. We think the facts in that case are distinguishable from those in the case at bar. In the Lay case the court emphasized the fact that no deed was made that plaintiff never claimed the property as his own, but always referred to it as his fa......
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