Walters v. Walters

• Decision Date: 31 March 1890
• Citation: 132 Ill. 467,23 N.E. 1120
• Parties: WALTERS v. WALTERS et al.
• Court: Illinois Supreme Court

132 Ill. 467

23 N.E. 1120

WALTERS

v.WALTERS et al.¹

Supreme Court of Illinois.

March 31, 1890.

Error to circuit court, Tazewell county; N. W. GREEN, Judge.

Bill by Katie Walters, widow of Charles Walters, deceased, and the children of said Charles, against Henry Walters, the father of said Charles, to enjoin the defendant from conveying or disposing of his farm, and to enforce the specific performance of an oral contract for the conveyance of such farm to Charles. Decree for complainants. Defendant brings error.

A. B. Sawyer and Wm. Don Maus, for plaintiff in error.

B. S. Prettyman, for defendants in error.

MAGRUDER, J.

In the present case the defendant below filed no answer. Default was entered against him. One of the questions arising upon the assignment of error is whether the bill states such a case as justifies the decree entered in the cause. Perkins v. Hadsell, 50 Ill. 216;Smith v. Brittenham, 98 Ill. 188. It may be admitted, as it seems to be assumed by both parties, that, in the absence of any plea of the statute of frauds, the verbal agreement set up in the bill would be enforced in favor of Charles Walters or his heirs, if he or they had performed his part of such agreement. Omitting the other provisions of the contract, and passing over its details, we may state its substance in brief, as follows: Charles was to have a home on the farm and support therefrom for himself and family during his father's life, and was to have the farm itself, and a certain amount of money, at the death of his father, in consideration of his staying on the farm and managing and cultivating it, and surrendering the proceeds of it to his father during the latter's life, and permitting his father and mother to make their home thereon, and have their support therefrom, as long as they each should live, and in further consideration of his paying $200 to each of his three brothers at his father's death. As Charles died in April, 1887, and as his father and mother are still alive, it is manifest that he did not perform his part of the contract. It is true that death rendered it impossible for him to accomplish such performance, but it is equally true that his father has not received from him the management and cultivation of the farm nor the surrender to himself of its proceeds, for the length of time agreed upon. The plaintiff in error is in no default. By the terms of the agreement, he was to do nothing in his life-time either in the way of paying money, or giving up the farm. The money was not to be paid, and the farm was not to pass to his son, until after his own death, which has not yet occurred. If this agreement is not one which has its basis exclusively in the love and affection existing between the father and son, and in the desire of the former to have the society as well as the services of the latter,-in other words, if the things to be done by Charles were not personal to him, but are such as can as well be done since his death by other parties,-then it is to noted that the complainants below, the widow and heirs of Charles, do not offer in their bill to perform for the deceased his unfulfilled part of the agreement; and this is true, notwithstanding the allegation of the bill that the widow worked in the field and otherwise labored on the farm with her husband in his lifetime, and since his death has continued to cultivate the land, and ‘to carry on said farm and work in the field in raising the crops raised in the years 1887 and 1888.’ The general rule is that, to entitle a party to specific performance, he must show that he has been in no default in not having performed his part of the agreement, and that he has taken all proper steps towards the performance on his part. The obligation in this regard rests as well upon the heir as upon the ancestor. Walker v. Douglas, 70 Ill. 445;Cronk v. Trumble, 66 Ill. 428.

The charge made against the plaintiff in error is that he is under the influence of his wife and his living sons, and that these latter may induce him to sell or convey the farm. If the danger of such sale or conveyance constituted sufficient reason for furnishing relief to the defendants in error, such relief could be secured by enjoining the sale or conveyance of the farm. The decree in this case, however, does not stop at a simple injunction. It takes the property of plaintiff in error out of his hands, and puts it in the hands of a trustee or receiver. By the terms of the contract with his son, as set up in the bill, all the proceeds of the farm were to be surrendered to him during his life-time. By the terms of the decree entered herein, the trustee appointed by the court is to take charge and custody of the farm, and keep and dispose of the rents and proceeds until the death of plaintiff in error and his wife, and plaintiff in error and his wife are only to be paid out of such proceeds so much as may be necessary for their reasonable support. The trustee cannot afford to manage the farm and perform the other services specified in the decree without being paid therefor, and thus the property of plaintiff in error is burdened with the compensation of an outside party acting as manager, besides being made to support the widow and children of his son, in addition to the support of himself and his wife. We do not think that the case as made by the bill justified that portion of the decree which placed the farm in the hands of a trustee.

The decree finds that, under the contract, the defendant below was to take all the proceeds of the grain and stock raised on the farm to pay off what he then owed thereon, except what might be necessary for the expenses of cultivating the land and supporting the two families, and that Charles cultivated and labored on the farm and paid over its proceeds for about 11 years, ‘when he died, and that the whole of the debts of said defendant on said premises were therefore fully paid off.’ There is not one word in the contract, as set up in the bill, about the debts of defendant, nor any allegation therein that any such debts existed, or that they were paid off. Nor is there anything in the testimony appearing in the record about the existence or payment of such debts. The contract alleged in the bill states that Charles was to pay $200 to each of his three brothers at his father's death. The decree finds the contract to have been that he was to pay $200 to each of two brothers. The only evidence to sustain the finding of the decree is the testimony of one Kingman, who says he heard Henry Walters say at one time that the sons, except Fred, were to get $200 each at his death; and of Katie Walters, the widow of Charles, Who says that her husband was to pay ‘$200 to Hanry and Christ’ at his father's death. ‘The decree must be confined to the pleadings. One case cannot be made by the bill, and relief granted on another and different case made by the proofs.’ Marvin v. Collins, 98 Ill. 510. The decree finds that the stock and produce on the farm at the death of Charles amounted to $2,000, ‘all of which arose from the care and labor of Charles under said contract,’ and that in 1877 the premises were worth $4,000; but, at the death of Charles, ‘by reason of his labor and improvements thereon, the same were worth $7,000.’ There is no allegation in the bill that corresponds with this finding,...