Dunn v. Berkshire

Mr. Justice Phillips delivered the opibion of the court: . It is urged, first, by plaintiffs in error, that the evidence does not sustain the cross-bill and the decree entered by the trial court. The evidence was of a voluminous and varied character. A full discussion of it would require much space and serve no better purpose than a brief statement of its substance. Defendant in error, in the year 1873, resided in the State of Missouri, and in the fall of that year, at the request of his father, returned to Champaign county, Illinois, and took possession of the forty acres in question. At that time the improvements were meagre and the land not valuable. This land had been purchased from the Illinois Central Railroad Company about the year 1869, for $390, to be paid in annual installments. The payments were completed in 1869 and a deed issued at that time. The deed was executed to Greenbury Berkshire., It is contended by defendant in error that he advanced much of the money to his father to make these payments, with the understanding the money should be repaid to him or that he should have a deed for the land, and as corroborative of these facts reference is made to a number of receipts given by the railroad company for annual payments, from which a portion had been torn off, and it is stated the part torn off contained the words, “Paid by J. B. Berkshire.” Whether or not defendant in error advanced to his father the whole or part of the money necessary to purchase this land, with the understanding it should be repaid to him or a deed executed to the son for the land, is not necessarily material in this case. It appears from uncontradicted evidence that after the defendant in error had taken possession of the land, buildings were constructed by him, additional land broken from the sod, and other improvements of a valuable and lasting character were made. Defendant in error paid all the taxes each year on this land from about the year 1876 up to the time of the filing of this bill, except for the year 1889, when they were paid by the father but out of money belonging to the son. The premises were insured by defendant in error and the insurance paid by him. The improvements made by him on the land he also paid for. A large' number of witnesses were called, who testified as to assertions and declarations made by Green-bury Berkshire, in his lifetime, regarding the title of this land. Some fourteen witnesses, mostly neighbors and acquaintances, testified, in substance, that the father had on frequent occasions stated the forty acres belonged to defendant in error, and also to the fact that the father, during the period of time since 1873, had exercised no acts of ownership over the land. On different occasions he refused to have anything to do towards the making of payments for improvements on the land, stating it belonged to defendant in error. At one time the father thoug'ht of removing from that section of the country and attempted to dispose of his farm. To those to whom he tried to sell he made no mention of this forty acres. The testimony of all the witnesses, together with other facts and circumstances, indicates, without doubt, the existence of a contract between the father and the son showing defendant in error to have certain rights in this land. The conclusion from all the testimony could be only that arrived at by the trial court, viz., that the father had promised to convey this land to the son, who, acting upon that promise, was in possession of the land and had made the improvements under such contract. It is contended by plaintiffs in error that the rights, if any, of the defendant in error would be barred by the Statute of Frauds, there being no memorandum in writing showing or tending to show the contract. It is true, the Statute of Frauds is a defense to a verbal contract for the sale or conveyance of lands; but where there has been a performance or part performance of a contract between the parties equity will enforce it, and the Statute of Frauds will not be a bar. (Morrison v. Herrick, 130 Ill. 631; Bright v. Bright, 41 id. 97; Shovers v. Warrick, 152 id. 355.) Where the owner of land makes a parol promise to a child to convey to it such land, and, relying on such promise, the child takes possession of the land and makes valuable improvements, the promise will be held to have been based upon a valuable consideration and a specific performance may be decreed. There is no important distinction between a promise of this character with part performance, and a sale absolutely. Where the possession is so taken by the child and the improvements made under the agreement or contract, it is sufficient to take the case out of the operation of the Statute of Frauds. Bright v. Bright, supra; Kurtz v. Hibner, 55 Ill. 514. Defendant in error, Jesse B. Berkshire, also relies upon his right to the land in question by virtue of the continuous, uninterrupted and adverse possession thereof for the period of twenty years under claim of title. Under our view of this case it ip unnecessary to discuss that question, or his rights, if any, thereunder. The evidence produced in support of the cross-bill was sufficient on which to base a decree of specific performance under a parol contract where there had been a part performance of such contract, and it is therefore immaterial whether or not the Statute of Limitations would bar complainants’ action. It is assigned as error, and insisted and argued by plaintiffs in error, that defendant in error, Jesse B. Berkshire, was not a competent witness, and it was error in the trial court to admit his evidence. It is unnecessary, also, to discuss this question. The cause was heard before the chancellor, and it is presumed he considered only competent evidence in rendering the decree. The record shows there was sufficient competent evidence upon which to base the decree, irrespective of the testimony of defendant' in error, and in such a case, if any error, it was a harmless one. It is also insisted the chancellor erred in refusing the motion of plaintiffs in error to assess a fee for complain- ' ants’ solicitor. The bill for partition, as filed, sought the partition of two hundred acres of land, including" the forty acres in question. It is true, one hundred and sixty acres of this was partitioned without question, but the inclusion of this forty acres made it necessary for the defendant to. present his defense. Where a defense in a proceeding for partition is substantial and not frivolous, it was not the intention of the legislature that the defendant should be compelled to bear the burden of any portion of the opposite party’s solicitor’s fees. In this case the defense interposed by Jesse B. Berkshire was not only substantial, but meritorious, and resulted in the decree complained of by plaintiffs in error. In such a case solicitor’s fees are not proper to be allowed to the complainant’s solicitors. Habberton v. Habberton, 156 Ill. 444; Walker v. Tink, 159 id. 323; Metheny v. Bohn, 164 id. 495. Perceiving no error in this record the decree of the circuit court is affirmed. Decree affirmed.