Warren v. Warren

• Decision Date: 31 March 1883
• Citation: 105 Ill. 568,1882 WL 14357
• Parties: SAMANTHA WARRENv.IRA P. WARREN et al.
• Court: Illinois Supreme Court

105 Ill. 568

1882 WL 14357 (Ill.)

SAMANTHA WARREN

v.IRA P. WARREN et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Will county; the Hon. FRANCIS GOODSPEED, Judge, presiding.

Messrs. BARBER & RANDALL, for the plaintiff in error:

Specific objection to evidence must be made in the court below, or it will be waived. Sargeant v. Kellogg, 5 Gilm. 281; Swift v. Whitney, 20 Ill. 144; Buntain v. Bailey, 27 Id. 410; Gillespie v. Smith, 29 Id. 473; Phy v. Clark, 35 Id. 377; Howell v. Edmonds, 47 Id. 79; Hyde v. Heath, 75 Id. 381; Clevenger v. Dunaway, 84 Id. 370; Merchants' Dispatch Trans. Co. v. Leyser, 89 Id. 46.

Objection to the competency of a witness must be made when his deposition is taken, and in the court, before the hearing. Frink v. McClung, 4 Gilm. 577; Moshier v. Knox College, 32 Ill. 155; Goodrich v. Pearson, 33 Id. 498; Wilkinson v. Dunning, 80 Id. 344.

In equity, what is agreed to be done is considered as done. Bishop v. Davenport, 58 Ill. 105; 1 Story's Eq. Jur. sec. 64.

Where one party has executed his part of an agreement in confidence that the other will perform upon his part, it would be a fraud upon the former to suffer the refusal of the latter to his prejudice. 1 Story's Eq. Jur. secs. 659, 761, 762, 771.

Expectancy of inheritance may be surrendered by parol. Galbraith v. McLain, 84 Ill. 382; Bishop v. Davenport, 58 Id. 105.

The courts will enforce family settlements. 1 Story's Eq. Jur. sec. 793.

We look upon the arrangement as one of a family nature, designed by the father as a disposition of his property without the formality of a will, by which children were paid off. Galbraith v. McLain, supra; Bishop v. Davenport, supra.

Messrs. FITHIAN & AVERY, for the defendants in error:

The evidence not showing complainant was actually put into possession pursuant to the gift or purchase she claims, and that she made valuable improvements on its faith, has no claim that equity can enforce. Pomeroy on Contracts, 184, sec. 130; Browne on Frauds, 467, 469.

The clearest evidence of a present gift, accompanied by exclusive possession and valuable improvements not to be compensated in damages, is necessary to establish a valid gift of land between father and son. Browne on Frauds, 474; Bright v. Bright, 41 Ill. 97; Langston v. Bates, 84 Id. 524.

The possession of the child must be exclusive, and independent of the parent. Cronk v. Trumble, 66 Ill. 428.

The presumption of law is, that complainant's services were performed from love and filial duty, in the absence of proof of a contract. Griffin et al. v. First National Bank, 74 Ill. 262; Morton v. Rainey, 82 Id. 216.

Acts of part performance must take place subsequent to the contract, and be in pursuance thereof. Wood et al. v. Thornby et al. 58 Ill. 471; Browne on Frauds, 474.

An agreement whereby a party shall ultimately be bound to sell land, is within the Statute of Frauds. Browne on Frauds, 274.

Possession, to take the case out of the statute, must be taken in the lifetime of the vendor. Cuddy v. Brown, 78 Ill. 415.

Admissions of a parent that he intended to convey or give land in the future to a child, can not be enforced. Langston v. Bates, 84 Ill. 524.

The testimony of complainant was incompetent. Alexander v. Hoffman, 70 Ill. 114; Connelly v. Dunn, 73 Id. 218; Stone v. Cook, 79 Id. 424; Branger v. Lucy, 82 Id. 91; Marshall v. Peck, 91 Id. 187.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that Hiram Warren settled on the farm in controversy, in Will county, in the year 1833. His wife died in 1841, leaving nine children, the youngest about one month old. Just before the wife's death she obtained a promise from her husband that he would not marry again so long as he had a daughter to keep house for him. The mother then requested plaintiff in error, who was over eighteen years of age, to stay with her father, take the babe, and rear it with the other children, with the help of her father. After his wife's death the father made the same request of plaintiff in error. She acceded to these requests, and has kept her promise strictly, by remaining with and keeping house for her father until his death, in August, 1879, he never having again married. He died intestate. Plaintiff in error thus remained with him for about thirty-eight and one-half years. She took the care and management of the family, and aided her father in rearing the children, and as her brothers and sisters severally arrived at manhood and womanhood they married and left home, and their father gave to each land and personal property, in about the same proportions. He never gave plaintiff in error anything but her board and inexpensive clothing. She having, before her mother's death, learned the trade of a tailoress, cut and made the clothing of her father and brothers, and made, or superintended the making of, the clothes of her sisters. In this entire time she lost but three months from this unremitting service to her father, and, as long as they remained at home, to her brothers and sisters. Nor did her father ever furnish her any hired help, and he generally had one or two hired men on the farm, who were boarded in the family. Some of her sisters were weakly, or absent teaching school, and yet she heroically discharged every duty during that entire period. In addition she, for many years, was relied on by her father for advice in all things relating to the management of the farm.

It is proved that the father, in his lifetime, repeatedly said the homestead on which he first settled, and also died, was to be the property of plaintiff in error, and but a short period before his death he promised to convey it to her, so that her brothers and sisters could give her no trouble about it after his death. This seems, from the evidence, to have been his fixed purpose for many years before his death, and when building a new house on the farm he gave plaintiff in error charge of its construction, saying it would belong to her after his death. He, from conversations with neighbors, for years before that time, manifestly regarded the property in fact as belonging to her, although the title stood in his name. He said to neighbors that he would give no more to his children except Samantha, and he called the property hers, thus in the most unmistakable manner recognizing her right to, and her ownership of, the property. This evidence stands unimpeached and uncontradicted, and must be regarded as true, and as recognizing the fact that plaintiff in error had paid for and was entitled to the farm. He, thus recognizing both his moral and legal obligation, promised to convey the property to her. He was too just a man to have deprived her of all her hopes and aspirations, and after having received the fruits of her long and weary years of toil and drudgery, extending through a lifetime, in old age to turn her on the world almost penniless, and too infirm to earn a support.

Subsequent to her father's death, plaintiff in error filed a bill for specific performance. She alleged the facts above stated, and claimed that her services had fully paid for the land, and that in consideration thereof her father had agreed to convey it to her, but had failed to perform the agreement in his lifetime. Defendants answered, and denied there was such a contract, and claimed that if there was, it was verbal, and is not binding, but is void, under the Statute of Frauds.

That plaintiff in error rendered the services at the request of deceased, when he had no legal claim to them, is clear, beyond dispute; and that these services were, without interest being allowed, almost, if not quite, equal to the full value of the land, and with interest computed from the end of each year, when the year's wages were due, the sum would largely exceed its utmost value, there can be no question. This, then, formed an ample consideration for the sale of the land, and this consideration had, every dollar of it, been received when the deceased expressly agreed to convey it to complainant. This was a part performance of the agreement.

It is not indispensable, to take a case out of the statute, that the consideration should be paid at the time of or after making the contract. A past consideration, or an indebtedness of the seller to the buyer, is equally meritorious, as a consideration, as the payment of money or property at the time or after the contract is entered into, and is as efficacious to take the contract out of the statute. This must be treated as a part performance to the extent the purchase money was fully paid.

Nor is it an answer to say that complainant intended to render these services as a gratuity. There is no evidence that she ever said she would or had. The services were rendered at her father's request, and on that the law creates a liability on his part to pay for them. It would be to reverse legal presumptions to hold, that because she failed to haggle with her father as to the price of wages, she rendered the services as a gratuity. Defendants claim that such is the presumption, and insist complainant is sordid and grasping because she does not choose to surrender the toil and pains of a long life to advance their pecuniary interests,--and...