Dunn v. McGovern

Weaver, J. — Prior to the year 1880 the plaintiff mar- ' ried the daughter of the defendant McGovern, who is a resident of Illinois. Plaintiff is a machinist by trade, but, not prospering satisfactorily in that line of work, he came to Polk county, Iowa, and for a time lived there upon a farm belonging to McGovern. Later he leased the land now in controversy from one Ellison, the then owner thereof, and-pending the term of said lease McGovern purchased the lanldl from Ellison, and took title to- himself. Up to this point there is no dispute between the parties. Plaintiff claims, however, that such purchase was really made for him, and that McGovern at the time, or soon afterward, made and delivered to him a written contract to convey the land on payment of its cost price. That contract, if it ever existed, is lost, but the defendant positively denies that- such paper was ever made. Defendant’s theory is that for the purpose of securing a home and support for his daughter andi her children he bought the land, and permitted the plaintiff and family to live thereon under an oral agreement by which plaintiff was to pay taxes, repairs, etc. He further says, in substance, that it was his intention in due time to secure said property to his daughter and her children by deed, will, or otherwise, but, the daughter having died in 1885, that purpose .was- abandoned; and that, while plaintiff has since that date been at times in possession of the land, it has been as his tenant, or upon sufferance only. It will thus be seen that the issue we have to decide is almost exclusively one of fact. No good purpose will be served [665] by discussing testimony in detail, and it may be said that on neither side Is it so clear or satisfactory as could be wished. On both sides there is a forgetfulness which is natural in regard to circumstances and conversations taking place a score of years in the past, and some indication of the mental reservations and prejudices which ordinarily mark -the testimony of hostile witnesses in family disputes. The pleadings upon both sides are patched with repeated amendments adding to, taking from, qualifying, or withdrawing allegations earlier made with a freedom which suggests that the exigencies of the case have served as a powerful stimulant to the memory of all the parties in interest. It is true there are many circumstances in the subsequent dealings between the parties which are consistent with the plaintiff’s story, but unfortunately they are not, as a rule, inconsistent with the story told by defendant. While it seems natural, if not probable, that defendant would devote this property -to the use and benefit of the daughter and her children, there are features of the -case which would ■seem to render it improbable that he would place his bounty in the control of her husband. It is not too much to say that the evidence demonstrates the plaintiff to he lacking in business thrift, and that from the outset he has been burdened with an uncomfortable load of debt. That fact must have been well known to the defendant before the land' was purchased from Ellison, and, while stimulating him to make provision for the daughter’s protection, would ■almost inevitably deter him from placing the property in the control of her husband. Whether there was in fact any agreement to convey to the daughter we need not consider, for siich is'not the contract sued upon. .That there was ever a written contract or bond for deed as claimed by plaintiff is not satisfactorily shown by the evidence. It is a recognized principle of the law of specific performance that, to grant such relief, the contract to be enforced must be clearly established, and the terms and conditions [666] thereof made free from doubt. Wilmer v. Farris, 40 Iowa, 309; Ralls v. Ralls, 82 Ill. 243; Wright v. Wright, 31 Mich. 380; Allen v. Fiske, 42 Vt. 462; Boggs v. Bodkin, 32 W. Va. 566 (9 S. E. Rep. 891, 5 L. R. A. 245). A much stronger case is required to maintain the suit than to defeat it. Willard, Equity Jurisprudence, 263; Vawter v. Bacon, 89 Ind. 565. In our judgment, the plaintiff’s case is not thus sustained by the evidence, and the decree of the district court is AEEIRMED.