110 Wis. 125 | Wis. | 1901
The defendant William claimed to have acquired title to the farm by an executed parol gift from his father in 1816, and by adverse possession for more than twenty years. The trial court found specifically against the claim of title by adverse possession, but made no specific findings upon the question of the alleged gift, unless it can be said that the finding to the effect that the defendant William never acquired any title except under the terms of his father’s will be such a finding. This latter finding is, at least, of doubtful import. While it may be construed as negativing the fact of gift, it is also susceptible of a construction to the effect that title could not, as matter of law, be transferred by parol gift. In view of this uncertainty as to the proper construction of the findings, we have concluded to examine the evidence upon the question of the parol gift, and ascertain whether the preponderance thereof supports the plaintiff’s contention. If it be found that such is the case, then, in the absence of any other established defense, the judgment must be affirmed. Brown v. Griswold, 109 Wis. 275. It is true that title to land cannot be transferred by parol (Stats. 1898, sec. 2302), but it is equally true that equity will protect and specifically enforce a parol gift of land if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements upon the property. Neale v. Neales, 9 Wall. 1. Such a gift,
Upon the other side the claim was that the alleged gift was disproved by evidence tending to show the following facts: The testator stated to several persons at various times when the question of ownership of the land was mentioned
The foregoing is a substantially complete statement of the facts in evidence upon which the question of parol gift must be determined. Reviewing the facts, and rejecting the statements of the testator as to his ownership of the farm as self-serving declarations, we reach the conclusion, without difficulty, that the defendant has failed to establish by certain and unmistakable evidence that such a gift was made, or that his improvements were made in reliance thereon.
When the relationship of the parties is remembered, it seems very clear that the acts of the parties are fully as much, if not more, in harmony with the idea that the farm was intended to be devised to the defendant by will, than with the idea that it had been given outright to the defendant in 1876. The burden was upon the defendant to prove the gift clearly and unmistakably, and he is confronted with numerous admitted acts of himself and of his father of which he knew, which refute the idea of a completed gift most strongly, and tend to show that the defendant’s possession was simply permissive. It is true that the defendant had paid considerable sums for taxes and improvements, but,
We can come to no other conclusion than that the testator placed the defendant on the farm with the intention of giving him title by will, but not with the intention of transferring title by the gift itself. In our judgment, all the significant facts point strongly that way, or are entirely consistent with that idea; and we feel no hesitation in so deciding, even in the absence of a specific finding of the trial court upon the question.
As to the claim of adverse possession we need spend little time. The considerations already stated bear with practically equal force against this claim as against the claim of parol gift. Moreover, the trial court found directly against the defendant’s claim of title by adverse possession, upon ample and persuasive evidence.
By the GouH.— Judgment affirmed.