
    Stater and Others v. Hill.
    Where a parol contract for the conveyance of real estate is fair in all its parts, is certain, is for a valuable consideration, does not interfere with the rights of creditors, and is capable of being performed, the Courts will generally decree a specific performance.
    In this case the purchaser entered into possession of real estate under a parol contract of sale, the consideration of which was that he should support the grantor and his wife for life. He did so, and also made valuable improvements. Held, that the contract was taken out of the statute of frauds.
    The finding of a Court upon issues of fact foimed under the old practice, but tried under the new, is treated by this Court as if the suit had been instituted under the code.
    APPEAL from the Shelby Circuit Court.
    
      Wednesday, May 26.
   Hanna, J.

This was a proceeding commenced in 1851 by the appellee, under the old chancery practice, by filing a bill, to which there was an answer by a portion of the defendants, without oath, and a default as to others. The issues were made up under that practice. The trial was after our new code of procedure was in force.

The proceeding was to enforce the specific performance of a parol agreement for the conveyance of land. The bill alleges that about the first of November, 1847, one William Jackson and the complainant made an agreement by which said Jackson was to convey to said Hill the land in controversy, and certain personal property which said Jackson then owned; and in consideration thereof said Hill was to take charge and care of, maintain and furnish, the said Jackson and wife, who were both then in advanced age and feeble health, during their lives; that in pursuance of said contract, said Hill removed his family upon said lands, took possession of said property, and took charge and care of, and furnished and provided for, the said William until his death, which was within a few days thereafter, and of Elizabeth, the wife of said William, until her death, which was about four years and a half thereafter; .that he caused them to be decently buried and paid their debts; that he has made valuable and lasting improvements upon said lands, to the amount of five hundred dollars; that when he moved upon the land Jackson was sick, but promised as soon as his health would permit he would make a conveyance of said lands to said Hill; that within a few days, his health still- declining, he sent for a justice of the peace to prepare a will by which to devise said lands to said Hill, but was not able so to do.

The heirs of said Jackson are made defendants. The answer admits that Jackson was the owner of the land; that he and his wife died about the time stated in the bill; that the .said Hill was living on the said lands at the time they died; but denies that the 'contract was ever made by said Jackson as alleged in the bill. The defendants then allege that said Jackson, in his lifetime, permitted the complainants to live on said land as a tenant at will, during the pleasure of the said Jackson, and in no other manner whatever; and that said Jackson and Elizabeth, his wife, fully paid said Hill for all his care and attention bestowed upon them, or either of them, during their lives; and that after their death said Hill took possession of, and used for his own purposes, the whole of their personal estate, of the value of 800 dollars, and has received to his own use the rents and profits of said land, of the value of 130 dollars per year. They deny that he made valuable improvements. The replication of the said Hill denies that he was upon said land as tenant at will, or that said Jackson ever paid him anything, &c. He denies that he appropriated to his own use the personal property .or the rents, &c.

The case was tried by the Court. Finding for plaintiff; and, over a motion for a new trial, judgment was rendered upon the finding.

The only point made in the brief of the appellants, is upon the third error assigned, to-wit: That the finding and decree of the Court is contrary to the law and the evidence.

It is assumed that the finding and judgment are contrary to law, because specific performance of a verbal agreement for the conveyance of land, cannot be decreed under any circumstances; and we are referred to Lester v. Bartlett, 2 Ind. R. 628, as an authority for this assumption. The case cited does not sustain the appellants. That was a suit for the price of land sold on verbal contract. No, part of the consideration had been paid, nor had possession been taken of the land.

C. Wright and W. J Peaslee, for the appellants.

M. M. Ray, for the appellee.

It is said in Atkinson v. Jackson, 8 Ind. R. 33, that when the contract is fair in all its parts, is certain, is for a valuable consideration, does not interfere with the rights of creditors, and is capable of -being performed, Courts will generally decree a specific performance.

“The purchaser’s taking possession of the estate, and making improvements on the same, under a parol contract of sale, have always been considered a sufficient part-performance to take the case out of the statute of frauds.” 4 Blackf. 385.

We think the bill shows a case entitling the complainant to relief. Issues of fact having been found upon some "of the allegations of the bill, and having been tried by the Court since the adoption of our new practice, the same rule prevails in regard to disturbing such finding, as if the suit had been instituted since that code was put in force.

Upon looking into the evidence, we find the facts and circumstances detailed to be such as should properly be left to a jury, or the Court sitting as a jury, to determine, under the issues made; and, to say the least of them, strongly tending to sustain the finding of the Court. We cannot, therefore, disturb that finding.

Per Cwiam. — The judgment is affirmed with costs.  