Wilmer v. Farris

Cole, J. ’We must affirm this judgment, because: First. The plaintiff lias failed to prove, satisfactorily, the alleged 1. SPECIFIC performance dence. contract and its definite terms. The plaintiff alone testifies to the contract, while the defendant with equal positiveness denies it under oath as a witness; and the only corroboration of plaintiff consists of admissions by defendant in conversations with third persons —a kind of evidence the law recognizes as weak and unsatisfactory, and some of which, in this case, may be accounted for upon the ground that the defendant expected to make the purchase, and others of them upon other grounds, tending to negative their title to any credit as corroboratives. Noel v. Noel, 1 Iowa, 423, and cases cited in note b. of Cole’s edition. Second. The alleged contract was for the sale of an interest in real estate, and exists only in parol. The only alleged 2. statute of ofarqaityS:a ®. formínoe.01 change of possession was that plaintiff claimed to withdraw from the management of the partnership business, leaving the defendant alone in possession of the property and business. This does not show that the defendant “ has taken and held possession under and by virtue of the contract,” so as to make the parol evidence competent under the statute of frauds,’or take the case out of the statute. The possession must unequivocally refer to and result from the agreement. Here, the defendant merely continued in possession; the case is not unlike a sale to a tenant, in which the continued possession by the tenant has been held insufficient. Mahana v. Blunt, 20 Iowa, 142, and authorities cited. Third. The evidence tends to show that the alleged price agreed to be paid for the property was very largely in excess 3 sTisciBTc Fnoqiütowe01 conn-iict. real value so Hindi so as to show it to be inequitable. Harper v. Sexton, 22 Iowa, 442, and authorities cited; Gilroy v. Alis, 22 Iowa, 174. These are our conclusions, and we deem it unnecessary to review the evidence, which is very voluminous and conflicting. AliKIRMED.