Irwin v. Dyke

Mr. Justice Sheldon

delivered the opinion of the Court:

The Statute of Frauds was not set up in the pleadings, which was necessary to be done in order to avail of that statute.

The proofs quite well establish that Lewis M. Dyke, in August, 1873, soon after he became twenty-one years of age, married, and lived with his parents until in the following spring, when he moved to Blue Mound, and went to farming on his own account. His father, Benjamin Dyke, and his mother, Sarah Dyke, were living on a rented farm, called the “Davis farm, ” and seem to have been both in feeble health. Benjamin Dyke proposed to his son; Lewis M., that if the latter would come back to the Davis farm, they would work together, and as soon as they got money enough they would buy a farm, and it should be Lewis’. Lewis Dyke thereupon left Blue Mound, where he had been about one year, and, together with his wife, moved back to the Davis farm, where he remained with his father and mother some four years, his wife doing the house-work, and he working on the farm. In the fall of 1878, Benjamin Dyke and Daniel Irwin purchased the two hundred acres of land described in the bill, taking a deed to themselves, jointly. The purchase price of the land was $7000, of which each was to pay one-half. They made a cash payment of $4000, including two assumed incumbrances of $900, and gave -their three promissory notes, of $1000 each, due in one, two and three years, respectively. In the spring of 1879, Daniel Irwin and Lewis Dyke took possession by moving upon the land. They made a division of the land between them, and have, from that time down to the present, continued to occupy and cultivate the lands so set apart between them, in severalty. Benjamin Dyke remained on the Davis farm, and died September 19, 1880. Of the purchase money which remained unpaid at the time of the purchase, Lewis Dyke has paid some $1200, a part thereof ($519) having been paid previous to the -death of Benjamin Dyke, and by the decree Lewis Dyke is to pay the balance of $500 remaining unpaid on the last of the three purchase money notes given by Benjamin Dyke and Daniel Irwin. After the purchase of the land, Benjamin Dyke treated the land as belonging to Lewis Dyke, often saying that he bought it for Lewis, and that it wras Lewis’ land. Although it does appear that on two occasions he expressed an intimation that he might not let Lewis have the 'land, this is of little weight against the greatly preponderating evidence of the contrary intention. Lewis Dyke made some small improvements upon the land, putting up a smoke-house about ten feet square, and a granary about five by ten feet, as one witness says, or as he says, ten by sixteen feet, and making some little fence.

On two or three occasions, Benjamin Dyke spoke of Lewis having four years’ work in the land, thereby recognizing that the purchase of the land was for Lewis in fulfillment of the agreement to buy a farm for the latter, and under which he came to live with his father and performed the services he did for him. It may be said, then, that it was on the faith of the agreement that he should have the land, that Lewis Dyke rendered the services which he did for his father, moved upon and lived on the land, making some improvements, and paid a considerable portion of the purchase money which his father agreed to pay for the land,—as much as $1200 of it. We think this brings the case within the rule of repeated decisions of this court, that where a father makes a verbal agreement with a son to convey to him a tract of land if the latter will go and live upon the same, make expenditures upon and improve it, and this is done in reliance upon the promise, a court of equity will enforce a specific performance of the agreement. Bright v. Bright, 41 Ill. 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; Warren v. Warren, 105 id. 568; Smith v. Yocum, 110 id. 142.

The decree will be affirmed.

Decree affirmed