125 Iowa 707 | Iowa | 1904
In 1881 Asa E. Eastwood, now deceased, and the plaintiff, his wife, were residing on the premises to which the present controversy relates, consisting of a farm of two hundred and eight acres. They had three children living, all of them married, two of whom — George Eastwood and Jennie Crane— are defendants in this action. The third and youngest, Ellis Eastwood, has since, disappeared, and is supposed to be deceased; and his two sons, as his heirs, are also made defendants. At this time the deceased had already given an eighty-acre farm to George, and another farm of one hundred and twenty-five acres to Jennie. He desired Ellis and his wife to live with him on the home farm; but Ellis was unwilling to do so, and it was agreed that George should deed to Ellis the eighty-acre farm which he then had, and go to reside on the home place. This arrangement w^s carried out, and the deceased added eighty-five acres to the eighty acres already given to George, and this whole tract was conveyed to Ellis. The evidence tends to show that as a part of the arrangement it was agreed between George and his parents that he should,live on the home farm, and take care of his parents, paying one-half the
It is elementary that, to make out an oral contract to convey, the evidence must be clear and satisfactory. We
III. Counsel for appellant urge strongly upon our consideration the fact that George parted with title to the eighty acres of land which had already been conveyed to him by his father in consideration of some arrangement by which he was to have the- home farm. But the equities are not so persuasive as counsel would have us believe. It is conceded that the eighty-acre farm had been given to George by his father by way of advancement, and it results that George simply gave up an advancement; and, even if he acquired no title to- the home farm, he is now, as heir, entitled to his share of the farm, subject to his mother’s dower interest, and will receive a larger portion thereof than the other heirs to. the extent that their shares have been lessened by the advancements made to them. In other words, George will receive as much property as he would have received had he retained his advancement and shared equally with the other heirs in the final distribution at his father’s death. It is not claimed that he has supported his father and mother since the original arrangement was made in 1881, nor since his return to the farm in 1892. He has given to them some care and assistance, but, so far as we can see, he, has received quite as much as he has given. Hnder the evidence it does not appear that one-half the grain rent has been an unusual rental to pay for the farm as he has occupied it, for considerable portions of it have been in pasture, for which he has paid no rent whatever, although he has had the use of the pasture for his stock. These suggestions are not made with the thought that any mere inequality or want of equity in the resulting distribution of the father’s estate would help the appellant to make out the alleged contract with his parents, but only as bearing on the intent of the parties evidenced by their acts with reference to such alleged contract. We cannot see that there was any such manifest
Counsel for appellee dwells upon the difficulties of
The advancements were of land, and the heirs who at decedent’s death still are in possession and enjoyment of such land conveyed to them by their father should, under the language of the statute, be treated as though they had taken such land at his death, increase in value, however, due to improvements put by them upon the land, not being taken into account. This is the rule announced in Finch v. Garr&tt, 102 Iowa, 381, construing section 2459 of the Code of 1873, which is substantially in the same terms as section 3383 of the present Code.