51 Wis. 23 | Wis. | 1881
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
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.
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 con
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.