SPECIFIC PERFORMANCE-STATUTE OF FRAUDS-verbal agreement by a father with his son as to a tract of land-part performance. Where a father made a verbal agreement with his son, that if the latter would remain in this State and go upon and live on an eighty-acre tract of land of the former, and improve it, it should be the son's after the father's death, the son to pay a certain share of the crops during his father's life, which contract was fully performed by the son, it was held, that the acts of part performance were sufficient to take the case out of the Statute of Frauds, and that a specific performance after the father's death was properly decreed, as against the other heir.

APPEAL from the Circuit Court of La Salle county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

On the 25th day of May, 1882, Samuel H. Yocum filed his bill in chancery in this case, alleging, in substance, that in the spring of 1875 complainant resided in Grand Ridge, in the county of La Salle, in this State, and was then intending to remove with his family to the State of Missouri or Kansas; that John Yocum, father of complainant, knowing of such intention, and being then the owner in fee of the south-west quarter of section 22, town 32, range 3, east of the third principal meridian, in La Salle county, and being also the owner in fee of the south half of the north-west quarter of section 15, town 32, range 3, east, in said county, and not wishing his son to move west, as intended, agreed with him that if complainant would move on said eighty-acre tract of land, and occupy and farm the same, and render to John Yocum, yearly, one-half of the grain raised thereon, so long as he (John Yocum) might live, and would improve the premises in such manner as to complainant might seem best, and

Brief for the Appellant.

would let a certain cattle transaction between them go into the land,—being a claim of complainant against John Yocum for about $700, growing out of dealings in cattle between them, that he (John Yocum) would pay all taxes on the eighty-acre tract so long as he lived, and that upon his death said eighty-acre tract should be the absolute property of complainant. The bill further alleged that complainant, in pursuance of and in reliance upon the agreement, moved with his family on the land, farmed and improved it, and gave his father one-half the grain raised thereon, down to the time of his death, (March 19, 1882,) with the exception of one year, (1877,) when he lived with his father, at the latter's request. The other surviving child was made defendant, and the prayer of the bill was for a conveyance. The answer put in issue the making of the alleged agreement, and the performance thereof, and set up the Statute of Frauds. Upon hearing, on proofs taken, the circuit court decreed in accordance with the prayer of the bill, and the defendant appealed.

Messrs. LELAND & GILBERT, and Messrs. DUNCAN & O'CONNER, for the appellant:

In a case of this character the proofs must be clear and satisfactory. Story's Eq. Jur. sec. 764.

To take a case out of the Statute of Frauds, on the ground of part performance, it is indispensable that the acts done should be referable exclusively to the contract. Story's Eq. Jur. secs. 764-767; Wallace v. Rappleye, 103 Ill. 231.

Possession under a father, or other near relative who stands in loco parentis, is insufficient to take a contract out of the statute, although attended by the making of valuable improvements, because the relationship between the parties tends to rebut the presumption which would have arisen had the parties been strangers. 1 Lead. Cases in Equity, 1051, and cases there cited; Hand v. Goodrich, 33 N. H. 32.

Brief for the Appellee. Opinion of the Court.

A court will enforce a contract within the statute only when there have been such acts of performance by the party asking the relief, that he would suffer an injury amounting to a fraud by a refusal to execute the agreement. Wallace v. Rappleye, 103 Ill. 231.

Messrs. MAYO & WIDMER, for the appellee:

Specific performance of a parol contract will be enforced, notwithstanding the Statute of Frauds, when the consideration has been paid and possession taken by the purchaser. Ramsey et al. v. Liston, 25 Ill. 114.

So, too, a promise or agreement, made by a father to a child, to convey a tract of land if the child will take possession and improve the same, when followed by possession, and the expenditure of labor and money in making lasting and valuable improvements, may be regarded as resting upon a valuable consideration, and will be upheld in a court of equity. Langston v. Bates et al. 84 Ill. 524; Bright et al. v. Bright, 41 id. 97; Kurtz et al. v. Hibner et al. 55 id. 514; McDowell v. Lucas et al. 97 id. 489; Bohanan et al. v. Bohanan, 96 id. 591.

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

It is insisted the proofs do not sustain the allegations of the bill. There is direct evidence of the agreement, as alleged in the bill, in the testimony of the witness Gordon that he was present and heard the making of the agreement between the parties. There is the corroborative testimony of as many as six other witnesses, of declarations made by John Yocum, very strongly confirmatory of the existence of a contract that complainant was to have the land. These statements were all made to the different witnesses on different occasions, and in some cases they were repeated to the witnesses at several different times, and many of them were made under circum

Opinion of the Court.

stances entitling them to more weight than should attach to ordinary loose declarations.

There is some impeachment of the witness Gordon, and there are some circumstances attending his testimony which are urged as affecting its credibility, and it is insisted the witness is not worthy of belief, and there are circumstances in the case which are commented upon as adverse to the idea that there was the agreement alleged. Without going more into particulars, we will say that after a careful consideration of all that is urged in depreciation of the testimony on the part of the complainant, and giving it due weight, the conviction remains upon our minds, from the evidence, that there existed, here, an agreement between the father and son, that if the latter would stay here, and go upon and live on this place, and improve it, it should be his after his father's death. The proof shows that in the same spring, after the making of the contract, complainant moved on the land, and ever since, until his father's death, did occupy, cultivate and make improvements upon it, with the exception of one year, when he lived with his father, at the latter's request. We think the agreement has been established here with the clearness and satisfaction which is required in the case of a parol contract respecting land, and that the acts of part performance shown are sufficient to take the case out of the operation of the Statute of Frauds, under former decisions of this court. Ramsey v. Liston, 25 Ill. 114; Bright v. Bright, 41 id. 97; Kurtz v. Hibner, 55 id. 514; Langston v. Bates, 84 id. 524; Bohanan v. Bohanan, 96 id. 591; McDowell v. Lucas, 97 id. 489.

The decree must be affirmed.

Decree affirmed.

10-110 ILL.

Syllabus.

110 146 125 225

110 146 58a 414 110 146 163 423

110 146 d91a 1166

d91a 2167

JOHN H. WEAVER

v.

WILHELMINA FISHER.

Filed at Ottawa May 19, 1884.

1. JURISDICTION IN CHANCERY-in matters of trust. In the case of a trust, as, between a principal and agent, it is well settled that a court of equity has jurisdiction to enforce an accounting and a surrender of the trust property, the time when the trustee should do so having arrived, and he having refused.

2. TRUST when it arises-as between principal and agent. Where a person is employed as an agent in the conduct of the financial part of the business of his principal, the relation is a fiduciary one in its character; and if the agent appropriates the property of his principal to his own use, or makes any profit to himself by virtue of his position, he must account therefor as for a trust.

3. Upon bill in chancery by a principal against his agent, to compel an accounting by the latter in respect of the business of his employment, and a surrender of property in his hands, it appeared there was an agreement whereby the defendant was to act as manager of the office part of the complainant's business (milling), except the running of the mill; to purchase grain, ship the product, make sale thereof, and do the banking and financial business,--all in defendant's name, but in fact taking no interest therein; to account therefor to the complainant, and upon a discontinuance of the employment to turn over and surrender to the principal all the money and other property, of every kind and nature, in his possession or under his control, belonging to the principal. It was held, this arrangement created a trust in the money and property of the principal or employer, of which the defendant became possessed under and by virtue of his employment.

4. RESULTING TRUST—when it arises. Where a person occupying a fiduciary relation purchases property with the trust funds, and takes title in his own name, a trust in the property will result to the cestui que trust, and this whether the property right is absolute, or only qualified and contingent. 5. BOARD OF TRADE-certificate of membership-how far to be consid ered as property, so that a court of equity will interpose to protect the owner in its enjoyment—and generally, as to property rights not subject to judicial sale. A person engaged in the milling business in Chicago employed an agent to manage the financial part thereof, and furnished him with a certificate of membership in the board of trade of that city, to enable him to conduct that part of the business advantageously, and such agent, on leaving his employment, refused to transfer such certificate and surrender the