Horner v. Clark.

SPECIFIC PERFORMANCE.-Demand.-In an action by a daughter to enforce the specific performance of an agreement of her father to convey to her certain real estate, it was not necessary that the complaint show a demand for a deed, where the complaint showed that defendant repudiated the contract, denied obligation thereunder, and conveyed the property to a stranger. p. 13.

From LaGrange Circuit Court; H. D. Wilson, Judge.

Action by Sarah A. Clark and another against Isaac Horner and others. Judgment for plaintiffs. Two of the defendants appeal. Affirmed.

O. L. Ballou and R. P. Barr, for appellants.

F. D. Merritt, J. D. Ferrall and J. W. Hanan, for appellees.

BLACK, C. J.-This was a suit for specific performance of an agreement for the conveyance of land, commenced on the 27th of March, 1899, by the appellees, Sarah A. Clark and Jesse C. Clark, against Isaac Horner and Catherine Horner, the appellants, and George L. Sparks. A demurrer of each defendant to the complaint for want of sufficient facts was overruled. It was shown in the complaint that the appellee Sarah, who was the wife of her co-appellee, was the daughter of the appellants, and she and her sister named (not a party) were the only children or descendants of children of the appellants; that in November, 1886, the appellant Isaac was the owner of over 400 acres of good and valuable land in LaGrange county, Indiana, on

part of which he and his wife, his co-appellant, resided; that at that date and for some time prior thereto, the appellee Sarah, with her family, was residing some eight miles away from her parents, who were and had been desiring her to come with her family and live near them, so that they could have her society, company, aid, and assistance, as they were alone and over sixty years of age; that the appellant Isaac was the owner of certain land, being eighty acres, described, in said county, which had no buildings on it, and at that date the appellants went to the appellee Sarah and

Horner v. Clark.

proposed to offer and agree with her that if she with her husband and children would move upon said eighty acres of land and settle upon the same and improve it and make it their home, they would aid her to erect a dwelling-house thereon near their home, so that they could enjoy the company and society cf their said daughter and family, and would convey to her said lands in fee simple; that appellee Sarah accepted said proposal and agreement; that under and pursuant thereto the appellants did give her said lands and did put her in full possession thereof, and she took possession with her family under and by virtue of said agreement, in the fall of 1886, and has remained in full possession of said lands from thence hitherto under said agreement, and relying upon the same and in compliance with said contract, erected a dwelling-house thereon of the value of $1,800, her father aiding her to the extent of $800; that she has fully complied with all the terms of said contract on her part; that with the knowledge and encouragement of the appellants, she has made other valuable, lasting and permanent improvements on said lands; that she erected thereon a barn of the value of $300, and put in three wells and pumps, and built outhouses and buildings, and cleared four acres of said lands, and fenced the entire tract into proper fields; that she planted and grew a good orchard of apple, peach, and other trees, all of which are now growing on said lands; and she has paid all the taxes on said lands since 1886; that while she was making these improvements, the appellants frequently have encouraged her to do so, and said they were ready to and would make her a deed to the lands, and "about six years ago" did sign and acknowledge a deed to her for said lands; that the appellant Catherine then refused to join in a deed for said lands to appellee Sarah until the appellant Isaac conveyed to her eighty acres of land of the value of $2,000, which he did upon the consideration that she would join in a deed with him to the appellee Sarah for the lands so agreed to be conveyed to her; that the

Horner v. Clark.

appellee Sarah with her family, husband and children, ever since the fall of 1886, has possessed and lived on said lands and made all of said improvements thereon, of the value of $2,000, under and pursuant to said contract and agreement, believing in good faith that the lands were her own and that her parents would convey them to her, as they had so agreed; that during all said time the appellants recognized said lands as hers, until the fall of 1898, when they repudiated and denied said agreement and demanded of her that she should pay them rent or leave said lands, and refused to convey the lands to her, though she had often requested them so to do; that on the 1899, they executed a deed of said lands, without consideration, to their codefendant, George L. Sparks, "who at the time had full knowledge of plaintiff's rights in said lands and her possession thereof." Prayer for judgment that the appellee Sarah is the owner of said lands, and that the defendants be decreed to convey them to her, and on refusal so to do, that a commissioner be appointed, etc.

day of

A complaint for the enforcement of the specific performance of a contract must show the contract to be complete and certain and fair, just and equal in all its parts, and founded upon a valuable consideration. The contract must appear to be capable of being specifically enforced against both parties, and it must be made to appear that a refusal to perform on the part of the defendant will be a fraud upon the plaintiff. Louisville, etc., R. Co. v. Bodenschatz, 141 Ind. 251; Ikerd v. Beavers, 106 Ind. 483.

When the party seeking by suit the specific performance of an oral contract for the conveyance of land has been put in possession of the land under and pursuant to the contract and has made lasting and valuable improvements thereon and has fully performed his part of the contract and thereby has paid the whole purchase price for the land, he is the equitable owner thereof, while the other party to the contract, the vendor, who has not performed the contract on

Horner v. Clark.

his part by the conveyance of the legal title, holds that title as trustee in trust for the equitable vendee; and until this trust is openly disavowed by the trustee and he insists upon an adverse right which is fully made known to the vendee, the cestui que trust, no lapse of time is a bar as between the vendee and the vendor. Cutsinger v. Ballard, 115 Ind. 93, 97; Hunter v. Bales, 24 Ind. 299.

In Starkey v. Starkey, 136 Ind. 349, the owner of land agreed by parol with his son that if he would not remove to another state as contemplated, but would move with his family upon the land and settle upon it and remain there so that the son might be near the father and he might enjoy the society of the son and his family, and if the son would give the father one-third of the grain raised on a certain part of the land until such time as the father would be in better financial circumstances, the father would convey the land to the son in fee simple, and in the meantime the son might go ahead and improve the land as his own, and for such consideration the land should and would belong to the son in fee simple. The son accepted the proposition, and pursuant to the contract, and at the instance of the father and with his knowledge and consent, did forego his intention of moving away and did move upon the land and was put in possession and control of it as his own by the father and continued to reside there and fully complied with the contract and made certain lasting and valuable improvements on the land, having at all times the assurance of the father that the land belonged to the son, and that he would receive a deed therefor, until a certain date, when the father, while the son was still in possession, without his knowledge or consent, made a deed for the land to a stranger to the contract who knew of the son's possession of the land. It was held upon demurrer to a complaint of the son for specific performance against the father and his grantee, showing these facts, that the contract was not too indefinite as to the time when the deed should be made,

Horner v. Clark.

and that the son could not be regarded as having possession as a tenant.

If the consideration flowing to the appellants was only good, and not valuable, there was a valuable consideration on the part of the donee, in that she was to remove to the land and live upon it and improve it, which the complaint shows was performed. Law v. Henry, 39 Ind. 414; LaFollett v. Kyle, 51 Ind. 446; McFerran v. McFerran, 69 Ind. 29; Atkinson v. Jackson, 8 Ind. 31.

"The fact that affection formed an element of the consideration does not impair the force of the contract. The parties agreed upon a consideration valuable in its nature, and their agreement as to its sufficiency the courts will not disturb, since to do so would be to make a contract for parties capable of contracting." Puterbaugh v. Puterbaugh, 131 Ind. 288, 292.

That no definite time for the making of the deed of conveyance was specified in the contract did not deprive it of an essential ingredient, see Puterbaugh v. Puterbaugh, supra; Starkey v. Starkey, 136 Ind. 349. This is not a case wherein. the party seeking a conveyance was to pay the party from whom such performance is sought any purchase-money or give him any valuable property, nor is it one wherein the alleged consideration was the future support of the vendor or the rendition of services of value for him. No valuable consideration certain or uncertain, definite or indefinite, was to pass or accrue to the vendor. The contract, however, appears to be sufficiently definite and certain, and the consideration is shown to be valuable, and appears to have been performed on the part of the vendee. Pursuant to the agreement she changed her situation, took actual possession and during her occupancy of many years made valuable and lasting improvements of the character indicated in the agreement. The failure and refusal to transfer the legal title to the land to her as agreed will operate as a fraud upon her. The taking possession and making improvements as stated