Swales v. Jackson

• Decision Date: 11 December 1890
• Citation: 26 N.E. 62,126 Ind. 282
• Parties: Swales v. Jackson et al.
• Court: Indiana Supreme Court

126 Ind. 282

26 N.E. 62

Swales

v.Jackson et al.

Supreme Court of Indiana.

Dec. 11, 1890.

Appeal from circuit court, Ohio county; A. C. Downey, Judge pro tem.

H. D. McMullen and John K. Thompson, for appellant. N. S. Given, for appellees.

BERKSHIRE, J.

This was a suit in equity to compel the specific performance of a contract resting in parol for the conveyance of real estate. The appellees were the plaintiffs in the trial court, and the appellant was the defendant. The action originated in the Dearborn circuit court, (the real estate, the title to which is involved, being in Dearborn county,) and was transferred upon change of venue to the Ohio circuit court. The complaint is in four paragraphs, each of which was demurred to. Demurrers overruled and exceptions reserved. An answer in two paragraphs was filed, and to the second paragraph a reply was filed. After the cause was put at issue, the same was submitted to the court for trial, and a finding thereafter rendered for the appellees. A motion was filed for a new trial and overruled, and an exception reserved, after which, judgment and decree was rendered for the appellees. The errors assigned call in question the sufficiency of each paragraph of the complaint, and the propriety of the court's ruling in overruling the motion for a new trial. In view of former decisions of this court, we are of the opinion that the first, second, and fourth paragraphs of the complaint are sufficient. We find that each of these paragraphs discloses a parol contract for the conveyance by the appellant to the female appellee of the real estate described, within a reasonable time; that the contract rests upon a valuable consideration, which the appellees have performed; that they entered into possession of the real estate under the contract, and have made lasting and valuable improvements; and that it would be inequitable and a fraud upon the appellee Sarah J. to withhold the title from her. The only doubt which we have had as to the fourth paragraph has been as to the sufficiency of the averments with reference to the taking of possession under the contract. It does not appear very satisfactorily from the averments in this paragraph that the appellees entered upon the land therein described under the contract; but we have concluded that the averments are sufficient as against a demurrer. The same may be said of that part of the first paragraph relating to the 32-acre tract of land. We cite the following cases in support of our conclusion: McFerran v. McFerran, 69 Ind. 29;Haddon v. Haddon, 42 Ind. 378;Pearson v. East, 36 Ind. 27;Cutsinger v. Ballard, 115 Ind. 93, 17 N. E. Rep. 206; Freeman v. Freeman, 43 N. Y. 34;Lobdell v. Lobdell, 36 N. Y. 327;Purcell v. Miner, 4 Wall. 513;Williams v. Morris, 95 U. S. 444;Burns v. Fox, 113 Ind. 205, 14 N. E. Rep. 541; Langston v. Bates, 84 Ill. 524. The last-cited case in its facts resembles very much the case under considerationas made by the averments in the first, second, and fourth paragraphs of the complaint, and fully meets the contention of the appellant that, on a parol agreement between parent and child, that if the latter will enter upon certain designated real estate and improve it the former will execute to the latter a conveyance, and the child takes possession and makes lasting improvements, specific performance cannot be enforced, for the reason that the contract does not rest upon a sufficient consideration. Kurtz v. Hibner, 55 Ill. 514;Hardesty v. Richardson, 44 Md. 617;Story v. Black, 5 Mont. 26, 1 Pac. Rep. 1;Burkholder v. Ludlam, 30 Grat. 255; Marling v. Marling, 9 W. Va. 79,-are to the same effect. In Johnson v. Pontious, 118 Ind. 270, 20 N. E. Rep. 792, it was said by this court that “a parol contract for the sale of real estate, the specific performance of which a court of equity will enforce, must be one that is complete and definite, and must be just and fair in all of its provisions.” See Welch v. Whelpley, 62 Mich. 15, 28 N. W. Rep. 744. We think the contracts alleged in the said first, second, and fourth paragraphs of the complaint come up to these requirements.

We are inclined to the opinion that the third paragraph of the complaint is not sufficient, in that it does not aver that the appellees entered into possession of the real estate therein described under the contract. If they were already occupying the land, whether as tenants or as former owners, and simply continued in possession after the parol contract was made, there was no such taking of possession under the contract as will take the case without the statute of frauds. To bring a parol contract for the sale of real estate within the exception to the statute, which requires all such contracts to be in writing, there must be an open and visible change of possession under the contract. If the vendee be in possession at the time of the contract, whether as tenant or otherwise, and continues to occupy, the case is not one falling within the exception. In the case of Johnson v. Pontious, supra, it is said: “The evidence fails to show that the appellee went into possession under the contract. The evidence is: ‘I went into possession because they agreed to sell it to me.’ Because some one had agreed to sell him the land, the appellee of his own accord took possession of it.” See Judy v. Gilbert, 77 Ind. 96. It was long ago held by this court that the payment of the purchase money is not such part performance of a parol contract for the sale of land as will avoid the statute of frauds; nor is the remaining in possession by a tenant such part performance, nor the taking of possession without the vendor's consent. Johnston v. Glancy, 4 Blackf. 94. See Rucker v. Steelman, 73 Ind. 396;Arnold v. Stephenson, 79 Ind. 126; Brawdy v. Brawdy, 7 Pa. St. 160. In Christy v. Barnhart, 14 Pa. St. 260, it is said: “It is not disputed at this time of day that to withdraw a parol sale of lands from the blighting effects of the statute of frauds there must be an open and absolute possession taken in pursuance of the contract, with a view to the performance of it. It is consequently a settled rule that a parol sale to a tenant in possession is within the statute, though his possession be afterwards continued, because there is no change of possession in execution of the contract.” See note in this case, 53 Amer. Dec. 541; Wentworth v. Wentworth, 2 Minn. 277, (Gil. 238;) Workman v. Guthrie, 29 Pa. St. 495; Poland v. O'Connor, 1 Neb. 50; Gangwer v. Fry, 17 Pa. St. 491.

The third paragraph of the complaint does not aver that possession was taken of the real estate under or pursuant to the contract. The first and second paragraphs disclose this important fact. In the fourth paragraph, it is alleged that the appellant put the appellees in possession of the real estate; and this allegation so connects itself with the allegations as to the contract as to be referable thereto. It does not appear in the third paragraph that the appellant placed the...