Truman v. Truman

44 N.W. 721, 79 Iowa 506, 1890 Iowa Sup. LEXIS 102

• Court: Supreme Court of Iowa
• Decided: February 10, 1890
• Status: Published

Opinion

Given, J.

I. The plaintiff asks specific performance of a parol gift of certain lands,, described, alleged to have been made by defendant Thomas Truman to the defendant Joseph Truman, his son," and husband of the plaintiff, which Joseph Truman accepted, and upon the faith of which he took and retained possession of said land, and made lasting and valuable improvements thereon. That courts of equity will decree specific performance in such cases is well established. Moore v. Pierson, 6 Iowa, 298; Peters v. Jones, 35 Iowa, 518. Such cases are among the exceptions to the statutory rule that all contracts relating to real estate must be evidenced by some writing, signed by the party to be charged. The burden of the proof is peculiarly upon the party asking performance. “If a party would take a case out of the statute of frauds upon the ground of part performance, it is indispensable that the parol contract,.agreement or gift should be established by clear, unequivocal and definite testimony, and the acts claimed to be done thereunder should be equally clear and definite, and referable exclusively to the said contract or gift.” Williamson v. Williamson, 4 Iowa, 281. We have considered the case without reference to the testimony introduced by defendants as to the declarations of Thomas Truman, to the effect that he had not given the farm to Joseph. In our opinion, the plaintiff has failed to show, with that clearness and certainty which the law requires, that a gift was made, or that the improvements that Joseph placed upon the farm were made upon the faith that the farm was his. The testimony is somewhat voluminous, and it would not serve any good purpose to refer to it at length. It is sufficient to say that all the facts are at least as consistent with the theory that Thomas Truman put his son Joseph on the farm to give him a chance to do well, and to see how he would succeed, as that he had given it to him. There is considerable conflict in the testimony as to how much of the improvements Joseph paid for. It is evident, however, that he neither made nor paid for any that he might not have done for his own convenience as tenant occupying during the will of his father. In our opinion, the decree of the district court should be affirmed. This view of the case renders it unnecessary to notice the other questions presented.

Aeeikmed.