Littlefield v. Littlefield, 51 Wis. 23

51 Wis. 23 | Wis. | 1881

Lyon, J.

The bill of exceptions contains certain testimony of the defendant (received under objection) in respect to transactions and communications by him personally with his mother and brother Stephen. This testimony was inadmissible, under B. S., 991, sec. 4069. It was not within any of the exceptions specified in the statute to the disability therein imposed upon a party to give such testimony. It will therefore be disregarded. Much of the testimony preserved in the bill of exceptions consists of statements and admissions of Deborah and Stephen D. Littlefield, made to witnesses (not including the defendant), respecting the alleged sale of her interest in the land claimed by Deborah to the defendant, the participation of Stephen therein, the consideration of such sale, and the payment thereof. It is maintained that this testimony was also inadmissible. Deborah and Stephen were privies in blood, and Stephen and the plaintiff privies in estate, in respect to the land in controversy. Such being the relations between the plaintiff and those from whom, or through whom, she derives title, it is elementary that she is bound by their admissions affecting such title. Undoubtedly testimony of the admissions of Deborah in derogation of her title would be admissible against her were she living and a party to an issue like this. In like manner, had Stephen brought an action in his lifetime to recover the land, testimony of such admissions made either by him or his mother would be admissible against him, had the issue been the same. The plaintiff being in privity directly with Stephen, and derivatively with Ms mother, in respect to the title she claims, the admissions of both or either of them, derogatory to her title, may be proved against her. 1 Greenl. on Ev., § 189.

The pleadings and the admissible evidence introduced on the trial satisfactorily establish the facts found by the circuit court. The only remaining question is, whether those facts support the judgment on the equitable counterclaim, vesting in the defendant the legal title to the land. The counterclaim of the defendant is substantially a complaint in equity for specific performance of a parol contract for the sale of land. The rules which govern the courts of this state in granting or refusing specific performance of such contracts, are laid down in the opinion by the present chief justice in Horn v. Ludington, 32 Wis., 73, as follows: “It is the settled doctrine of this court, that the mere payment of the consideration, unaccompanied by any other act, is not such a part performance of a parol contract for the conveyance of land as will authorize a court of equity to specifically enforce contracts of that character. There must be some other act done to raise an equity in favor of a party to a complete performance, such as the taking of possession of the lands sold under the contract by the purchaser; or one party must have induced the other so to act that if the contract be abandoned he cannot be restored to his former position, and a refusal to perform the contract will operate as a fraud.” Page 76. The same rules were applied in Ingles v. Patterson, 36 Wis., 373; and this case must be determined by them.

Let us briefly state the leading facts. The agreed considerations were adequate. Stephen received the money portion of the consideration, and, by an instrument in writing over his signature, relinquished to his brother “ all claim to property heretofore supposed to be owned jointly ” by them. Beyond all question the property thus relinquished was his expectant interest in the land in question, which would otherwise have descended to him at his mother’s death. The defendant also, in further performance of the contract, maintained his mother until she died, eleven years later. The contract was certain and unambiguous in its terms, and has been fully performed by the defendant. The defendant managed and carried on the land, and his mother resided with him before as well as after the parol contract was entered into. Their residence was not on the land in question, but on a lot or farm in the vicinity, owned presumably by the defendant alone. From the very nature of the case there could not be any very marked or notorious change in the visible possession and occupancy of the land after the contract was made; yet from that time the possession of the defendant was exclusive. _ If there is any doubt of the exclusiveness of his possession before his mother’s death, there can be no doubt about it at some period preceding Stephen’s death; for it is alleged in the complaint that Stephen died ousted of possession by the defendant.

The only remaining fact necessary to be stated is, that the defendant put upon the land $2,000 in permanent improvements after the contract was made, and, as a matter of fact, after the death of his mother, but in the lifetime of Stephen. But for the circumstance that the defendant and his mother were tenants in common of the land when the parol contract was made, there can be no doubt that the defendant would be entitled to specific performance. The facts more than fulfill every requirement of the rules above stated. Some of the cases, notably Workman v. Guthrie, 5 Casey, 512, seem to go to the extent of holding that there can be no valid parol contract for the sale of land among tenants in common where all are in possession. If these cases mean that a tenant in common in possession, who purchases by parol of his cotenant also in possession, cannot take the exclusive possession of the land from thenceforth, and on performance of the contract maintain an action for its specific performance,‘especially if in good faith he makes valuable improvements upon the land, we cannot follow them. The equities of a tenant in common so purchasing may be just as strong, his possession just as exclusive, as are the equities and possession of a purchaser not a tenant in common of the land he contracts to buy. If there is any solid reason why a court in equity should open its doors to one of these, and close them against the other, we fail to perceive it.

We conclude that the defendant was entitled as against the plaintiff to a specific performance of the parol contract with his mother, and hence that the judgment of the circuit court should not be disturbed.

By the Court.— Judgment affirmed.