Ingles v. Patterson

Cole, J. The questions arising upon the defendant’s counterclaim are almost all questions of fact. In defense of the ejectment, and as a ground for affirmative relief, he states' in the answer, in substance, that in the year 1857 he made a parol contract with the plaintiff for the purchase of the strip of land in controversy; paid the consideration money in full; entered into possession of the premises under the contract; has ever since possessed the same as owner; and has made valuable improvements thereon. The circuit court found that these allegations in the answer were true, and sustained by the evidence produced on the trial. This being so, the relief prayed for in the answer was granted. But the counsel for the plaintiff argues and insists that the weight of testimony, as well as the strong probabilities of the transaction, support the conclusion that the consideration money was never paid. There is certainly some conflict in the evidence upon this point; but the finding of the court that it was paid as alleged is not overcome by the weight of testimony as contained in the record. And such being the state of the proofs upon the question, the finding of facts by the court below cannot be disturbed. For the rule, as laid down by this court, upon that question is, that “ to justify the reversal of a finding of fact, on appeal to this court, there should, in any case, be a fair preponderance, or at least some preponderance, of evidence against such finding.” Murphy v. Dunning, 30 [377] Wis., 296; Bacon v. Bacon, 34 id., 594. We cannot say tbat any such preponderance exists against tbe finding in tbe case at bar. We shall not go into any analysis of tbe testimony upon the question, but only state our conclusion upon it. But again, it is argued by counsel that the evidence shows no such acts of performance of the parol contract on the part of the defendant, as takes the case out of the statute of frauds, and justifies the court in enforcing a specific performance.' We are unable to adopt that view of the matter. We feel warranted in assuming, not only that the consideration money was paid, but that the defendant entered into possession under the parol contract, has occupied the premises since 1857, and has expended money in improving them. It appears that the land has been drained by means of a ditch, and has been fenced, and that some money was expended in digging a well, which, though now dry, it is not probable the defendant would have dug had he not relied on the performance of tbe contract. Those acts, we think, show such a part performance of the parol agreement as takes the case out of the statute. For “ courts of equity exercise their jurisdiction in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the statute of frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement.” Lord Cottenham, in Mundy v. Jolliffe, 5 Myl. & Cr., 167; Blanchard v. McDougal, 6 Wis., 167; Fisher v. Moolick, 13 id., 321. The acts of performance on the part of the defendant would seem to bring the case fully within that principle of law. But it is further objected that the judgment makes no provision that the defendant refund the taxes which it appeared the plaintiff had paid on the land in question since 1857, as a condition to granting specific performance. It is true, the evi [378] dence showed that the plaintiff had paid the taxes on the forty acres, and upon this strip as a part of such forty acres. What proportion of those taxes should be paid by the defendant as justly chargeable upon the disputed strip, cannot well be determined from the evidence. Had the plaintiff made distinct proof upon that point, the court would doubtless have ordered the repayment of the amount by the defendant as a condition to granting relief. But he made no such claim, nor any such proof; and for that reason the objection to the judgment on-that ground must be disregarded. By the Court. — The judgment of the circuit court is affirmed.