Wood v. Thornly

• Decision Date: 31 January 1871
• Citation: 58 Ill. 464,1871 WL 7954
• Parties: ELIZABETH WOOD et al.v.SAMUEL THORNLY et al.
• Court: Illinois Supreme Court

58 Ill. 464

1871 WL 7954 (Ill.)

ELIZABETH WOOD et al.

v.SAMUEL THORNLY et al.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

Messrs. KETCHAM & DELEUW, for the plaintiffs in error.

Messrs. MCCLURE & STRYKER, for the defendants in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The court ruled correctly in sustaining the privilege of the witness Springer. The relation of attorney and client was shown to have existed at the time between the witness and Ralph Thornly, whose declarations were sought to be called out by the question propounded to the witness. The rule is, that it is the privilege of the party asking the advice, and not of the attorney, and the witness was correct in declining to answer. The People v. Barker, 56 Ill. 299.

The principal question to which our attention has been called, is whether there has been such performance of the parol contract alleged, and upon which the cross bill is grounded, as will take the case out of the scope of the statute of frauds.

The main facts appearing in the record bearing upon the solution of this question, may be briefly stated: In 1864, the defendants, Samuel and Hugo Thornly, resided with their father, Ralph Thornly, on his farm, and had so resided with him from the time they respectively became of age, and worked on the farm, making valuable improvements. The farm consisted of thirteen forties, making 520 acres, a part of which had been placed in a good state of cultivation, principally through the personal labor of the defendants. In the work of preparing the land for farming purposes, they were assisted by hands hired and paid for their services by the father. The buildings of a permanent character, were erected and paid for by the father, with the proceeds realized from the products of the farm, as the same was gradually brought into cultivation. It does not appear that the work that was done on the farm previous to the year 1864, by the defendants, was performed under any special arrangement or agreement with their father. Hugo was married, and with his wife resided on the farm in the family residence. Samuel was never married. Ralph Thornly was, and had been for many years, a widower, and the wife of Hugo took charge of and managed the domestic affairs of the homestead. Samuel was the older of the two brothers, and had worked on the farm after he became of age, for some twenty years or more; but Hugo, being much the younger, did not work near so long.

It appears that the defendants had their living off the farm, and had acquired some separate property during the period they so worked for their father.

Previous to the making of the alleged contract, it appears that Samuel became dissatisfied with his situation on the farm, and was about to, or perhaps did, leave for the purpose of working for himself. His father sent for him to return, and upon his return, it is insisted that the contract relied upon was entered into between the parties. The substance of that contract is, that Ralph Thornly agreed with his two sons, Samuel and Hugo, in consideration of their past services, and for the further consideration that they would furnish him a permanent home in the family so long as he should live, and would also furnish him a riding horse whenever he desired it, and for the further consideration that the sons would take the personal property on the farm and pay him for the same at the appraised value, he would make them a deed for twelve forties of the farm, reserving the forty on which the family residence stood, during his life time, and at his death it was agreed that it should also go to his two sons, Samuel and Hugo.

It was agreed that the father should go to town and execute the proper conveyances. The personal property was immediately appraised under the terms of the agreement, and was taken into the control of and paid for by the defendants. The contract was by parol, and was entered into in April, 1864. Soon after the making of the alleged contract, the parties went to the office of the witness Springer, to have the necessary papers prepared, and a deed and lease were prepared, and which appear as exhibits in the cause.

Some misunderstanding arose between the parties as to the meaning of the contract, and what the sons were to do for him, while still in the office of Springer, when Ralph Thornly inquired of Springer whether the papers that had been prepared would be binding on him unless he signed them, and upon being answered in the negative, he declared in terse and most emphatic language that he never would sign them, and the papers were never executed.

The defendants, however, continued in possession of the farm, working it as their own, paying the taxes and retaining the proceeds to their own benefit. The improvements that were made by the defendants after the making of the alleged contract, were not of any very considerable value, and were only such as related to ordinary husbandry. The defendants continued to hold possession of the farm up to the time of the death of their father, which occurred in the month of February, 1867.

In March, after the death of Ralph Thornly, the original bill in this cause was filed by the other heirs, for partition of the lands of which he died seized, and the defendants filed their cross bill, in which they alleged the verbal contract substantially as above set forth, and asked a specific performance.

The defendants to the cross bill, in their answer, deny all the material allegations, and plead the statute of frauds to the alleged contract, and insist that, if any such contract was ever made, it was not valid and binding in law.

We now recur to the question suggested at the outset, and proceed to inquire whether there has been such performance, or part performance, of the contract, on the part of the defendants, with the knowledge and consent of the father, as would take the case out of the operation of the statute of frauds, if it be admitted that the contract was entered into, as alleged by the defendants themselves.

That a parol contract for the sale of land will be enforced in equity, under certain circumstances, notwithstanding the statute of frauds, is now the settled law. Even a promise of a gift of land by the father to the son, where the promise has been acted upon, and has induced the expenditure of money and the making of permanent and valuable improvements, with the knowledge and consent of the promisor, has been enforced in equity, on the ground that it would be inequitable to permit the promisor to retract or refuse to execute the agreement. Tyler v. Eckhart, 1 Binn. 378; Kurtz v. Hibner, 55 Ill. 514.

But in all cases of a parol contract for the conveyance of land, there must be such a performance as will take the contract out of the statute of frauds. The courts have no right to construe the statute of frauds so as to destroy its meaning. If the statute establishes a hard and inequitable rule, it is the province of the legislature, and not of the courts, to repeal it. We are satisfied that it establishes a wholesome and salutary rule in its application to the transaction of the affairs of life. In its practical operation, it conduces far more to the prevention of wrongs, through frauds and perjuries, than it works injury in particular exceptional cases.

Where, however, there has been a part performance of the contract, in some instances equity will regard the contract as perfected, so as to take it out of the statute of frauds. Mr. Adams, in his work on equity, calls it the “doctrine of part performance,” and says “its principle appears to be that, if one of the contracting parties...