Maloy v. Sloan , 44 Vt. 311 ( 1872 )

The opinion of the court was delivered by

Ross, J.

We do not find the contract, which the orator claims to have made with the defendant, Mary, at the time of her marriage with the defendant, Richard, and which he seeks to have enforced by a decree of specific performance,' established by the proof. The orator alone testifies to the contract. The defendant, Mary, as positively denies it. Mary Doan, before whom the pai’ties, at one time, had some talk about the matter, corroborates the story and claim of the defendants rather than of the orator. To entitle the orator to a decree of specific performance, he must clearly establish the contract which he asks to have enforced. The orator having failed to establish the contract, we have no occasion for deciding whether the contract, if established, would have been barred by the statute of limitation.

The orator also claims that he is entitled to have the defendants’ suit at law, for the partition of the premises, conveyed to him and tbe defendant, Mary, by deed, from George S. Hunt, administrator on John Maloy’s estate, enjoined, till tbe defendants shall have paid to him one half tbe purchase money of tbe premises, with interest, and one-half of tbe taxes and improvements made by him thereon, lessened by one half tbe rents and profits which he has received from the same. It is conceded that the orator paid the entire purchase money for the premises, but took the conveyance, jointly, to himself and his sister, Mary, on her agreement to pay him one half of the same ; and that he has paid the taxes on the premises, and permanently improved them by erecting buildings and clearing up the land. It would be manifest injustice to allow the defendants, by a suit at law, to have half of the premises set off to them, without paying half of the purchase money, and for half of the improvements. The power of a court of chancery, in such cases, to order compensation to be made, and to stay proceedings at' law until compensation is made, is clear and unquestionable. 1 Story’s Eq. Jur. §§ 653 to 657; 2 do. §§ 1234 to 1237, and notes.

The pro forma decree of the chancellor dismissing the bill is reversed, and the cause remanded, with a mandate to the court of chancery to order an account taken between the orator and the defendant, Mary, in which the defendant Mary is to be charged ^with one half of the purchase money, with interest, adding to the sum paid to the administrator the other debts against John Maloy, which the orator paid, and which were not included in the sum paid to the administrator ; also with one half of the taxes on the premises paid by the orator, with interest, and one half of the present value of the permanent improvements, including the buildings and the improved condition of the land, and also with the value of the property belonging to the orat or, which the orator allowed her to take at the time of her marriage with the defendant, Richard, with interest’. She is to be credited with whatever she has paid, if anything, towards the purchase money or improvements, by her labor while living with the orator, with one half of the rents, profits, and use of the premises in the condition they were when purchased; and also with one half of whatever wood or timber may have been sold or taken by the orator from the premises. For whatever sum is thus found due to the orator from the defendant, Mary, the orator is to have a decree. The defendants’ suit at law for a partition of said premises is to be perpetually enjoined, if the defendants shall fail to pay the sum thus found due to the orator by such a time, and in such a manner, as the court of chancery shall order. The temporary injunction is continued until such time as the defendants shall pay the sum found due, and ordered to be paid to the orator as compensation.