67 Ind. 440 | Ind. | 1879
This proceeding was commenced by Rachel Johns, widow of Joseph B. Johns, deceased, against Jacob B. Johns, Benjamin F. Johns, Duloena Johns and Surepta Emmert, for the partition of one-half of a fractional quarter section of land in Boone county, the said Jacob and Benjamin being the children, and the said Bulcena and Surepta being the grandchildren, of the said Joseph B. Johns.
The said Jacob and Benjamin, after answering in general denial, set up, by way of cross complaint, that, they were the owners of the land, of which partition was demanded, subject to a life-estate in one-third thereof in the plaintiff; that, in 1860, the said Joseph B. Johns, being then the owner of said land, sold and agreed to conve}' the same to them, in consideration that they would keep, support and maintain the said Joseph B. Johns and the plaintiff during the natural life of him the said Joseph; that, in pursuance of such contract, they, the said Jacob and Benjamin, went into the possession of said land, and made valuable and lasting improvements thereon, and kept, supported and maintained the said Joseph and the ptaiutiff, until the time of the said Joseph’s death, in 1876. Wherefore the said Jacob and Benjamin demanded a conveyance of said land.
The plaintiff also answered the cross complaint of the said Jacob and'Benjamin, in general denial.
The court trying the cause found in favor of the plaintiff, and, over a motion for a new trial, decreed partition substantially in accordance with the prayer of her complaint, directing cue-fourth of the land to be set off to the said Dulcena and Surepta, and the remaining three-fourths to the said Jacob and Benjamin, subject to the life-estate of the plaintiff as above stated. Partition as decreed was afterward made, and confirmed by the court.
The said Jacob B. Johns and Benjamin E. Johns have appealed, and assigned error upon the refusal of the court to .grant them a new trial, alleging the insufficiency of the evidence to sustain the finding of the court.
It may he said to have appeared from the evidence, that the decedent, Joseph B. Johns, in September, 1858, received a conveyance for the land in dispute from one John Stribley and wife ; that, at the time of such conveyance, he, the said Joseph, had probably been in the possession of the land for several, if not a good many, years ; that, after receiving such conveyance, he continued in such possession, with his family, residing upon the land, until the 4th day of October, 1876, the time of his death ; that, at the time of this conveyance, the said Jacob and Benjamin were under twenty-one years of age and resided with their said father, as members of his family, and that they continued to reside with him on the land, on which was a farm, until his death, the said Benjamin continuing to live in the same house with him and the plaintiff; that, from, some time previous to 1860, not fixed by any witness, and until his death, the said Joseph B. Johns was a cripple, by rea
It is claimed by the appellants that, upon the facts as thus disclosed by the evidence, they were fairly entitled to a finding in their favor, and to a specific performance of the parol contract set up in their cross complaint, and that, consequently, the court erred in overruling their motion for a new trial.
To take a parol contract for the sale of lands out of the statute of frauds, it must be shown, amongst other things, that the purchaser went into possession under the contract of sale. The mere continuance of a former possession, referrible to some other origin or authority, is not sufficient. Story Equity, secs. 762,763; Moore v. Higbee, 45 Ind. 487 ; Carlisle v. Brennan, ante, p. 12.
In this case, it was not shown that the appellants went into possession of the land in suit under the alleged contract of sale ; nor, indeed, that they went into the full and exclusive possession of the land at all, at any time during the lifetime of their father.
Under such circumstances we can not say that the court erred in its finding upon the evidence.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.