Briefs of Counsel.

APPEAL from the Circuit Court of Mercer county; the Hon. GEO. W. PLEASANTS, Judge, presiding.

Mr. JOHN C. PEPPER, for the appellant:

A verbal promise to make a gift is utterly void. To this rule there are no exceptions. Pope v. Dodson, 58 Ill. 360.

So long as such promise is unfulfilled there is a locus penitentia, and the promised donee has no right of action. Hoig et al. v. Adrian College et al. 83 Ill. 267.

The alleged promise stands upon the same footing as a verbal sale of lands, and is within the Statute of Frauds. To enforce it the complainants must disclose facts taking the case out of the statute. Walton v. Walton, 70 Ill. 142; Wadhams v. Gay, 73 id. 415; Cronk et al. v. Trumble, 66 id. 428; Taylor v. Staples, 6 Am. Rep. 556; Fry on Specific Per. 64; Browne on the Statute of Frauds, par. 472-476; McClellan v. Kellogg, 17 Ill. 498.

In order to take a parol gift or parol sale of lands out of the Statute of Frauds, the person seeking its enforcement must perform all his part of the contract. Something must be done by the donee. Browne on Statute of Frauds, sec. 497. The act or acts of performance must be done by the complainant. Ibid. sec. 453.

The donee in possession must have made some sacrifices. Ibid. 488, 490.

The acts of performance must have been done in pursuance of the promise, contract or gift, and in execution and performance thereof. Ibid. 454, 457; Fry on Specific Per. 384; Cronk et al. v. Trumble, 66 Ill. 428.

Messrs. BASSETT & WHARTON, for the appellees:

Whitsitt, by taking a subscription to himself to build a church, and collecting the same, took upon himself a written trust, by the subscription paper, to use the funds for the common benefit of the subscribers. Cross v. Pinckneyville

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Mill Co. 17 Ill. 54; T. and P. R. R. Co. v. McNeely, 21 id. 71; Snell v. Trustees M. E. Church, 58 id. 290; Willard v. Trustees M. E. Church, 66 id. 55; Johnston v. Ewing University, 35 id. 518.

In 1874 trustees were elected, and the present trustees were elected in June, 1880. They represent the interests of all the church members as to church property, and succeed to all the rights of the former members of the church. Ferraria v. Vasconcellos, 31 Ill. 54; Griswold v. Trustees, 26 id. 41; Fry on Specific Per. sec. 141.

While the law requires that a contract must be clearly proved to take a case out of the Statute of Frauds, still, an implied contract may be sufficient. Fry on Specific Per. secs. 223-228; Addison on Contracts, secs. 30, 1399, 1401; Chambers v. Rowe, 36 Ill. 171; Downing v. Wright, 51 id. 363; Schwarz v. Schwarz, 26 id. 81.

A contract need only be substantially proved as alleged. Ramsey v. Liston, 25 Ill. 114.

The consideration was sufficient. Kurtz v. Hibner, 55 id. 514; Stone v. Great Western Oil Co. 41 id. 86; Warren v. Warren, 105 id. 568; Price v. School Directors, 58 id. 452.

Under the relations of John Whitsitt in the church, the society, church or organization had all the possession that was necessary and consistent with the circumstances. Warren v. Warren, 105 Ill. 568; Brooks v. Bruyn, 24 id. 372; Hubbard v. Kiddo, 87 id. 578.

Laches is set up in the answer, but it is not available in such a case as this, where the complainants were in possession. Mills v. Lockwood, 42 Ill. 118; Wilson v. Byers, 77 id. 76.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

The bill in this case, for a specific performance, sets out, substantially, that William Hammond and four other named persons are "trustees of the Preëmption Presbyterian Church;"

Opinion of the Court.

that on or about June 2, 1866, William Hammond and others, being desirous of erecting a Presbyterian church building and organizing a Presbyterian church or society, entered into a verbal agreement with John Whitsitt to erect a church building in the town of Preëmption, in Mercer county, for such purpose, selecting as a site certain described land owned by Whitsitt, by which agreement Whitsitt promised to convey the lot of land to any ecclesiastical or corporate body of Presbyterians, for a place of public worship, so soon as they should be able to organize such society or corporation, provided they should erect a suitable house of public worship on the lot of ground; that Hammond and his associates proceeded to erect a building for public worship on the land; that the church building was dedicated in May, 1868, and that at the dedication Whitsitt repeated his promise to Hammond and the congregation or society, and the elders and deacons thereof, to convey the lot on which the building was erected, to the church or society, as soon as there was a church organization and any proper body to whom to convey, if the church should be dedicated as a Presbyterian church; that in November, 1868, there was effected an organization or worshiping congregation of the Presbyterian church at Preëmption, which has ever since continued; that from the time of its dedication the church was occupied by the society as a house of public worship, until March 1, 1881; that on the 2d day of June, 1880, the society effected a legal organization, and the persons above named were elected trustees; that on March 1, 1881, Whitsitt closed the doors of the church, and refused to let the society use the same as a place of public worship. The bill prays for a conveyance of the lot of ground upon which the church stands. The answer sets up that the church building was built by Whitsitt himself, and almost exclusively with his own money; that he purposed and intended, if the people in that neighborhood formed and organized a church, and subscribed funds enough,

9-110 ILL.

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with the amount of funds he was willing to subscribe in the first instance, to erect a church building; that he would deed the land to the church, when legally organized as a corporate body; that he suffered meetings to be held in the building, but has kept the possession of it himself, and owns it; that he never promised to any person or body that he would give and deed the church and land, and that if he did so, it was a naked promise, without binding force. And the answer sets up the Statute of Frauds, and that the claim is stale, and barred by the Statute of Limitations. The court decreed the relief prayed, and the defendant appealed.

It is contended that there was here, at the most, but a verbal promise to make a gift, which was without consideration, and is void. The testimony of Whitsitt himself is, that the Preemption Presbyterian church was commenced to be erected in 1867; that he circulated a subscription paper for the purpose of getting funds to build it; that he subscribed $1000; that there was $800 or $900 subscribed by others; that some of the subscribers paid, and some did not pay; that he obtained all the subscriptions; that they were payable to himself; that he undertook to build, and did build, the church, himself; that no person but himself took any part in getting subscriptions or making contracts for the building; that the church cost about $2600; that he always claimed the property, but said he would deed it when there were proper trustees to whom to deed it. Under these circumstances, there was more involved in the case than a mere naked promise on the part of the defendant. It is idle to speak of these subscriptions of others, though payable to defendant, as having been obtained and made for the purpose. of building a private church for the defendant, on his land. They were obtained for the purpose named in the subscription paper, of building a Presbyterian church in Preëmption, and manifestly for the benefit of the Presbyterian society at that place; and from the very fact of procuring

Opinion of the Court.

the subscriptions and expending them in the erection of the church building, the law would raise an implied promise on defendant's part to make a conveyance to the society of the ground upon which the church was erected. Such conveyance would be essential to the full enjoyment and control of the building by the society, and not to imply the promise to make it would be to admit the purpose of the perpetration of a gross fraud,-a supposition not to be entertained. It has often been held, in the case of mutual subscriptions for a common object, and there has been expenditure of money in the accomplishment of the object, that a subscription is binding as a valid contract, expenditures having been made on account thereof. (Robertson v. March, 3 Scam. 198; Pryor v. Cain, 25 Ill. 292; Baptist Education Society v. Carter, 72 id. 247; McClure v. Wilson, 43 id. 356; Pratt v. Trustees, 93 id. 475.) The church, here, was built mainly from subscriptions. Defendant put in some money additional to what was subscribed, but all on his part, we think, is to be regarded as subscription,-not only the $1000 which he did actually subscribe, but the additional money he contributed, and the church site. We thus hold the promise in this case to be more than a mere naked one to make a gift, and to be a promise which has the support of a sufficient consideration.

With respect to the defence under the Statute of Frauds, because of the promise not being in writing, we think there is sufficient here in the way of part performance in payment of purchase price, taking possession and making improvements, to take a case of a verbal agreement to convey land. out of the operation of the statute. The expenditure of the subscriptions which were made, in the erecting of the building, may be regarded to be what is tantamount to the payment of the consideration. Even after the dedication of the building as a house of public worship, in May, 1868, until in March, 1881, when the defendant turned the key upon the door of the house, there was, we consider, all the possession