Mayo v. Mayo
| Decision Date | 19 April 1922 |
| Docket Number | No. 14527.,14527. |
| Citation | 302 Ill. 584,135 N.E. 90 |
| Parties | MAYO et al. v. MAYO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit by Charles W. Mayo and others against David Mayo, in which Myrtle Mayo was made a party defendant. From a decree dismissing the bill and ordering the execution of a deed to defendant Myrtle Mayo on her cross-bill, plaintiffs appeal.
Affirmed.
Appeal from Circuit Court, Edgar County; John H. Marshall, judge.
Stewart W. Kincaid, of Paris, for appellants.
F. C. Van Sellar, of Paris, for appellee.
Henry C. Mayo died intestate on March 29, 1920, leaving surviving as his only heirs at law his brothers and sisters, Charles W. Mayo, Mary F. Whitehead, John M. Mayo, and Sarah S. Mayo, appellants, and David Mayo, also a brother. At the time of his death he was seized in fee of lots 55 and 56 in Brown's Second addition to the town of Kansas, Edgar county, Ill. The appellants filed their bill for partition, making David Mayo defendant. Later they filed an amended bill, setting forth, in addition to the averments of the original bill, that Myrtle Mayo, daughter of David Mayo, claimed some interest in the property, and denying any such interest in her.
Myrtle Mayo was made defendant, and filed her answer and also a cross-bill, in which she alleged that in 1902 Henry C. Mayo was the owner of the fee of the described real estate, and that she was a young girl, who had her living and her way in the world to make; that Henry C. Mayo, who was her uncle, agreed with and promised her that if she would come and live with him, and remain with him until his death, he would give to her, as a consideration therefor, everything that he might die possessed of, both real and personal; that she, in pursuance of said agreement with Mayo, did in 1906 go to his home in Kansas, Ill., from the city of Chicago, where she at that time resided, and did live with and occupy with him the real estate described in the original and cross bills, until the date of his death; that while so residing with him she earned a part of the living for herself and for him, and that she bought and paid for much of the household furniture used on the premises, and paid for a large part of the supplies and food; that Mayo told her frequently that he had made provision for inheritance by her of his real and personal property because of their agreement, but that since his death she has been unable to find any will or deed by which a conveyance was made; that since his death she has continued in possession of said premises and is the owner thereof in fee; that no adequate compensation can be obtained from the estate of Mayo for her services, except by requiring the real estate to be conveyed to her.
There averments are all denied by complainants in the original bill, and their answer also sets up the statute of frauds as a defense. The cause was referred to the master, who found the issues for the complainants in the original bill and against the complainant in the cross-bill. Upon a hearing by the chancellor on exceptions to the master's report the same were sustained, and the chancellor found the issues for the cross-complainant, dismissed the original bill for partition for want of equity, and ordered that the master in chancery execute a deed of the premises to the cross-complainant.
The principal question involved in the case is whether or not a parol contract to convey property has been proven with that degree of certainty which takes it out of the operation of the statute of frauds. The rule is that, to take a case of oral contract to convey land out of the statute of frauds, it is necessary that the contract to convey should be established by competent proof in a clear and definite manner, and that the promisee shall have taken such possession under the contract as the terms of the contract and the situation of the parties require. Where such clear proof of the contract is made, and it is shown that the promisee has taken such possession, courts of equity will enforce such a contract without proof of exclusive possession. Dalby v. Maxfield, 244 Ill. 214, 91 N. E. 420,135 Am. St. Rep. 312;Warren v. Warren, 105 Ill. 568.
The rule also is that, while an oral contract to convey land must be established by clear and satisfactory proof, it is not necessary that the contract shall be proved by a third party who heard it made, but it may be proved by declarations and conduct of the parties not in the presence of each other. Fletcher v. Osborn, 282 Ill. 143, 118
WILLIAMS S. S. CO., Inc., Hudson, 273 Ill. 350, 112 N. E. 683;Lonergan v. Daily, 266 Ill. 189, 107 N. E. 460;Christensen v. Christensen, 265 Ill. 170, 106 N. E. 627;Willis v. Zorger, 258 Ill. 574, 101 N. E. 963;Gladville v. McDole, 247 Ill. 34, 93 N. E. 86; Dalby v. Maxfield, supra; Daly v. Kohn, 234 Ill. 259, 84 N. E. 901;Watson v. Watson, 225 Ill. 412, 80 N. E. 332;Standard v. Standard, 223 Ill. 255, 79 N. E. 92;Geer v. Goudy, 174 Ill. 514, 51 N. E. 623.
The evidence shows that Henry C. Mayo, known throughout this record as Clay Mayo, was the owner of the property in question in Kansas, Ill. He was a bachelor, living with an unmarried sister, Harriet. In 1906 appellee came to live with him. She had been in Chicago with an aunt, Sarah Mayo, for a period of 6 years, where it appears she had assisted in the housework and attended school at the Hyde Park high school, and also attended Northwestern University for a period 6 of months, caring for the children of a minister at Winnetka during that time. She returned to Kansas at the request of Mayo, and resided with him and his sister, Harriet, until the death of the latter, in 1909. Thereafter she continued to reside with Mayo until the time of his death, in 1920. It appears that she taught school for several years in and near the village of Kansas; that during this time she did the housework for her uncle, and later took up sewing as a means of livelihood; that at times she was away from his house, but that it was with his consent and for the purpose of...
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