63 Ark. 100 | Ark. | 1896
(after stating the facts.) The appellants, the husband and children of Mrs. Meigs, allege that her father, Boling, agreed to convey this land to her upon condition that she and her husband would reside upon it. They contend that she complied with the terms of the contract, and that, having since died, the lands now in equity belong to her heirs. Although they did not make Boling a party, nor expressly ask for a specific performance of such contract, they seek to accomplish the same end by having the conveyance by Boling to Morgan cancelled, and the land declared to be the property of appellants. To justify a decree in favor of appellants, the proof should be sufficient to have warranted a decree of specific performance against Boling, had he retained the title, and the suit been brought against him. This is true, even if we concede that both Morgan and Morris had notice of the claim of appellants at the time they purchased; for, if the proof is not sufficient to have justified a decree against Boling, it would not warrant a decree against those to whom, for a valuable consideration, he sold and conveyed the land.
In order that a court of equity shall exercise its power to decree a specific execution of a contract to convey land when there has been a part performance thereof, such contract must be clear and unambiguous, and must either be admitted or proved with a reasonable degree of certainty. When the possession of land is not in pursuance of a contract to convey, or if such possession and the improvements made by the party holding- it can reasonably be accounted for in some other way than by such a contract between the parties, then such possession and improvements will not ordinarily avail as a part performance. Pomeroy, Specific Performance, secs. 116 and 136. Por this reason it has been held that “the possession by a son of land belonging- to his father, even when accompanied by valuable improvements, will not. be treated as a part performance, because the relation between the parties prevents the inference of a contract of sale which would otherwise arise from the facts, and removes all necessity of accounting- for the possession by the supposition of a contract to convey. Pom-eroy, Specific Performance, sec. 116; Poorman v. Kilgore, 26 Pa. St. 365; 67 Am. Dec. 425; Cox v. Cox, 26 Pa. St. 375; 67 Am. Dec. 432; Ham v. Goodrich, 33 N. H. 32.
In the case of Poorman v. Kilgore, supra, the Supreme Court of Pennsylvania said that: “It is so natural for parent's to help their children by giving- them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. It is so entirely usual to call certain books, or utensils, or rooms, or houses, by the name of the children who use them, that it is no evidence at all of their title as against their parents, but only a mode of distinguishing- the rights which the parents have allotted to the children as against each other, and in subjection to their own paramount right. The very nature of the relation, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express, and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it and nothing else.”
The rules of law announced in the above quoted decision are based on sound reasons, for it is a matter of common observation that parents often permit their children to take possession of property, and allow them to claim and use it as their own, but with no intention on the part of such parents of parting- with the title, or of conferring upon their children the power to compel them to convey the same.
It is unnecessary to discuss the evidence in this case. The chancellor found that the possession of the land in controversy and the improvements made thereon were not made in pursuance of a contract to convey. We have read the evidence carefully, and, while there is some conflict, we cannot say that the finding of the chancellor is clearly against the weight of the evidence; on the contrary, we are of the opinion that his finding is in accordance with the weight of evidence. The testimony of Boling, whose deposition was taken and read by appellants, seems to support the finding of the chancellor. It tends to show that he had given his daughter possession of this land to be used as a home, and that he at one time intended to give and convey it to her, and had so informed her, but he afterwards became poor, and was compelled to mortgage and then sell the land. A promise to give at some future time cannot be enforced, and the proof, in our opinion, 'does not show that Boling did more than this. Appellants, therefore, did not make out their case.
The judgment is affirmed.