Taft v. Taft, 73 Mich. 502

Taft v. Taft

73 Mich. 502 | Mich. | 1889

Campbell, J.

The bill in each oi these causes was filed to obtain the specific performance of a parol agreement by Adon Taft, complainant’s father, that complainant should have certain lands, which were part of Adon’s lands, mostly used for farming purposes, after the death of the father. The court below gave a decree for the *506complainant. The same facts, in substance, came before us in- Taft v. Taft, 59 Mich. 185 (26 N. W. Rep. 426), where it appeared that, in pursuance of the same equities, Adon Taft executed deeds in his life-time, to be delivered after his death; but, as we then held, the delivery was on such terms as to amount to no more than a testamentary act, not conforming to the statute of wills, and not valid to convey the land. We there held that the equities could not be settled in an ejectment suit, and therefore we could give no opinion upon them.

The present suits were brought to establish those equities. Without going into the facts at large, — and the-contest is one of fact almost entirely, — we are satisfied that many years ago Adon Taft prevailed on each complainant to give up his other plans in life, and remain about his father’s home, working land, and doing other labor, and rendering other assistance, in his father’s interests, with the promise and understanding that at or before his father’s death the land in question should be made his. It is certain that before his death Adon Taft attempted to carry out his engagements, but failed from a legal error in the formalities of its execution. Upon the substantial merits we have no doubt whatever.

The chief defense relied upon in this Court is a variance between the bill and proofs. It is undoubtedly true that some of the elements of the contract are not in the proofs precisely as alleged, and in some circumstances there are considerable variances. But there is not the least ground for doubting that the land was promised, that the deed failed of execution, but was intended to be executed, and that complainant, at his father’s instance, devoted most of his life to furthering his father’s objects, and working-with him or in his interest. Enough appears from independent testimony to prove a perfect case for relief. The variances are circumstantial, and do not change the sub*507stantial merits. They are all, so far as significant, such as might, and usually would, be found where all the testimony comes from outside witnesses, and neither party to the contract is allowed to be sworn. Under our statute concerning the acts and declarations of deceased persons, in suits against their estates, a great deal of testimony is shut out which would not be shut out between living parties. Family dealings between father and son must generally be beyond sight and hearing of third persons. Their mutual confidence precludes calling in witnesses, as it precluded here the execution of papers. If enough is shown by witnesses to make out all the elements of a contract, we must assume that much must have existed further which no third party knew. It is also to be considered that, in a long course of mutual dealings, it is not impossible that from time to time some changes may have been acquiesced in on both sides, as new circumstances arose. It would be very singular if these two persons had sat down, and deliberately forecast all the future of their livás, and predetermined all their conduct. The testimony here is more definite than we usually find it in such affairs; and it would be a denial of justice to cut off redress on a question of pleading, even if more serious than any we find here. We regard the transactions of Adon Taft concerning the deeds which he signed as of great significance, as showing a wish to do as he had agreed. It is probable that the old man may have at different times asserted new conditions, and that his sons may have had a filial willingness to yield to his wishes, even if unreasonable. That would not destroy or negative their rights. If the variances were such as to require the bill to be amended, we should not hesitate to allow it to be amended now, and to treat it as amended. But we do not think the variances are so serious as to require it. *508They do not affect the substantial merits enough to be regarded as changing the issues.

The decree must be affirmed, with costs.

The other Justices concurred.-