Lacy v. Gard

Mr. Justice Boggs delivered the opinion of the Court.

It was abundantly proven that Jacob Gard, Sr., desired to make and made partition of his real estate among his descendants during his life to take effect in possession at his death.

The parties hereto, his children, joined with him in the proposed partition of the lands and each accepted the parcel allotted to him or her by the father.

The proof is ample to sustain the view of the trial court, that the ancestor determined that the tract or parcel taken by appellant was of greater value than either other parcel and required the party to Avhom it should be allotted to pay the sum of $300 to the others to equalize the shares in value. It was equally well proven that the appellant desired this more valuable tract, was fully informed of the condition upon which she could have it, and that she accepted it Avith such knoAvledge.

The evidence Avas verbal, but it should not for that reason have been excluded.

The proposition of the ancestor to divide the lands during his lifetime, and to allot it in four parcels of equal area but of unequal value, and to impose upon the party receiving the more valuable tract the duty of paying a sum to equalize the value of the shares, and the acceptance of the proposition by the parties, constituted a contract.

It Avas not reduced to writing.

The deeds did not and Avere not intended to embody it. They Avere executed in part performance of it.

It Avas competent to receive parol evidence as to the terms and conditions of the contract. Benks v. Gillett, 13 Brad. 369 ; 1 Greenleaf, Evid., Sec. 284.

This eAddence disclosed a parol partition of land by the father, acting in conjunction Avith his children, including an agreement for the payment of a fixed sum to equalize the shares, folloAved by possession in severalty. Having been so partly performed, it Avas, in equity, taken out of the operation of the statute of frauds, and became enforcible in all of its parts in a court of chancery. 17 Amer. & Eng. Ency. of Law, p. 668-669; Fleming v. Carter, 70 Ill. 286 ; Stevens v. Wheeler, 25 Ill. 300 ; McNamara v. Garrity, 106 Ill. 384 .

The sum to be paid to equalize the. allotments Avas equitably and in legal effect OAvelty as fully under the circumstances as if partition and the undertaking to pay it had been entered into between the parties hereto after the death of the ancestor.

Owelty creates a lien. 13 Amer. & Eng. Ency. of Law, 603.

Courts of law could not establish the lien. The remedy in that forum being inadequate, resort to chancery became allowable.

The decree is affirmed.