178 N.E. 348 | Ill. | 1931
Lead Opinion
Nellie Corcoran Williams and Margaret S. Demling, sister and niece, respectively, of John Corcoran, who had died intestate, filed a bill in the circuit court of Cook county praying partition of certain Oak Park residence property owned by John. Anna Corcoran, another sister of. John, was named defendant. Anna filed an amended answer and *106 a cross-bill, in both of which she claimed ownership of the property by virtue of an alleged agreement between herself and John whereby she was to receive it in return for keeping house for him and taking care of him until his death. The prayer of the cross-bill was for specific enforcement of the agreement. The cause was referred to a master, who heard the evidence and filed a report recommending that a decree in partition be entered and that the cross-bill be dismissed for want of equity. From a decree entered in accordance with this recommendation Anna Corcoran has appealed.
In the absence of a valid and enforceable contract there can be no basis for a decree of specific performance. Was there such a contract here? It is admitted that there was no written agreement, but appellant relies upon the rule that the chancellor may enforce an oral contract where there has been full performance by the party seeking equitable relief. We must determine, therefore, whether there is here disclosed of record an oral contract, which, coupled with performance thereof on appellant's part, would afford a proper basis for a decree in her favor.
Before a parol contract for the conveyance of real estate will be specifically enforced in a court of equity it must appear to be certain, definite and unequivocal in its terms. The proof upon which the conveyance is asked must be established so convincingly that it will leave no reasonable doubt in the mind of the court. (Adkins v. Adkins,
To establish the alleged contract appellant placed upon the stand several witnesses who had talked with John Corcoran before his death. Paul Henneberry, who worked with him on the same job every day for seven or eight years and talked with him every day, testified that before John bought the property here involved he said he wanted, and intended, to buy the home if he could get his sister to go with him, but he was afraid she was going to get married and he was afraid to live in it alone, and that later he said his sister was going to keep house for him and he was going to purchase a home. C.E. Smith, the real estate broker who negotiated the deal by which the property was sold to John, testified that a month or two after the deal was closed John came to see witness; that witness quizzed John about being a bachelor and buying a home and asked if he were going to get married, whereupon John replied that it was probable he would never marry, and that even so he had a roof over his head and someone to take care of him, and that about a month or so later John said he thought perhaps appellant would never marry as long as he was alive and would live there and take care of him. In answer to a question as to just what John said, witness replied: "He said Anna was his sister, who would have everything when he died; that is, he didn't say this but I inferred it." Smith also testified that John said he did not have any use for the rest of the bunch and did not want them to have a dollar of his money when he died. Horace Doyle, who had known John since 1907 and had worked with him for five *108 years or so and ate lunch with him every day, testified that John said that his only aim was to save up enough money to buy a home and get away from his family; that at John's home one night he told witness that he had gotten his sister to come and live with him and was saving considerable money and was pretty happy; that at other times he told witness that he was glad to have appellant come to live with him as she was the only sister that ever had any use for him, and his family had no use for him outside of this one sister; that he intended to live there until he died and would never sell the home or convert it into business property; that he further told witness that it was his home and he would keep it and when he died everything would go to appellant; that shortly before he died witness asked him why he did not make a will like witness had done, and he replied that if he did he would not live very long, adding: "Well, it won't make any difference; my sister will get it all when I die, anyway."
On rebuttal, and over objection, appellant was allowed to testify to what she told Fred J. Kuhn in a conversation had after John's death. She testified that she said to Kuhn: "You know when my mother died she left us all a little bit in the estate, and she left me $5000, and I said to John I wanted to buy a little home while I have the money, whereupon John said, 'No, I am going to buy a home; you put your money out at interest and I will buy the home and that will always be yours;' " and that she further said to Kuhn: "You know, I went with John then, and I kept house for him and I cooked for him."
About three weeks after John's death appellant filed in the probate court of Cook county a claim against the estate of John, claiming for services as "housekeeper, dietician, cook, laundress and janitress," from August 1, 1917, to May 30, 1928, at $100 per month, $13,000, and for damage to health on account of lack of heat $10,000, total $23,000. This claim was dismissed after hearing. *109
After John's death a special assessment against the property and a plumber's bill were paid by contribution of one-third from each of the parties to this cause, appellees testifying that appellant requested them to pay a third each. Appellant denied that she had requested such contribution, and stated that she received the two-thirds contribution from the attorneys for appellees before she was advised as to her rights.
Considered in the light of the principles announced by the authorities above cited, the evidence adduced by appellant, assuming it all to be properly admissible, falls short of establishing a contract which a court of chancery can undertake to enforce. The situation disclosed is quite similar to that which was under consideration in Wrestler v. Tippy,
Appellant rightly insists, on the authority ofAldrich v. Aldrich,
Appellant argues, upon the basis of certain language used inMundy v. Joliffe, 5 Myl. C. 167, Brown v. Sutton,
The decree of the circuit court is affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Decree affirmed.
