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It is further contended by appellants that under the law in question school directors of the district from which such transfer is made have the right to select the high school district to which such pupils shall be transferred. That portion of the law is as follows: “The parent, or guardian, shall select the high school to be attended, subject to the approval of the school directors of the home district.” It is contended by appellants in this case that in the exercise of their right they selected a different high school to which such transfer should be made from the one selected by the relator, as parent of the children desired to be transferred. This portion of the law is subject to a reasonable construction. Parents and school directors of the district from which the transfer is sought are supposed to work in harmony in the matter of transfers, and it is not the intent or purpose of the law to allow either to make an arbitrary selection of the high school to be attended. If the respondents, as directors of the home district, could show any valid reason why the transfer should not be made to the school selected by the parent or could show any reason why the transfer should be made to the school selected by them, such reason should be considered and passed upon by the court on its merits. Such selection should not be arbitrary in either case. We are not informed by the record of the situation of the parties, and nothing is set up in the answer of respondents, or any reason given, why the selection of the Robinson township high school by the parent was in any way improper, nor is any reason given why respondents should select the Palestine high school contrary to the wishes of the parent, and in the absence of any such showing we must decline to reverse the judgment on those , grounds.
For the reasons given, the judgment of the circuit court of Crawford county will be affirmed.
WILLIAM RICHARDSON, Appellant, vs. JEANETTE LANDER
et al. Appellees.
Opinion filed February 17, 1915.
1. SPECIFIC PERFORMANCE-oral contract must be certain and definite and be clearly established. In order to entitle a party to specific performance of an oral contract to convey land the contract must be certain and definite in its terms and be established by clear evidence, and it is also essential that it be established by clear and convincing proof that the promisee went into possession under the alleged contract and made valuable improvements with his own means upon the faith of the promise and with the knowl-, edge of the promisor.
2. SAME-clearer proof is required where alleged contract is between father and son than between strangers. Clearer proof is required to establish the elements necessary to justify the enforcement of an oral contract to convey or devise land where the complainant is the son of the alleged promisor, who has been dead for several years before the filing of the bill to enforce the contract, which is claimed to have been made some twenty years before the father's death.
APPEAL from the Circuit Court of McLean county; the Hon. Colostin D. MYERS, Judge, presiding.
BARRY & MORRISSEY, and Livingston & Bach, for appellant.
DEMANGE, GILLESPIE & DEMANGE, and WELTY, STERLING & WHITMORE, for appellees.
Mr. Justice FARMER delivered the opinion of the court :
This is an appeal from a decree of the circuit court of McLean county, dismissing, for want of equity, appellant's bill asking for the specific performance of a parol contract to convey eighty acres of land.
Matthew Richardson, Sr., in his lifetime was the owner of the eighty acres in controversy. He also owned an eighty immediately north of said eighty, and one hundred and sixty acres across a highway just west of the two
eighties. He sold the one hundred and sixty acre tract to his son Matthew Richardson, Jr., in 1907. There were no improvements on the one hundred and sixty acres sold. Matthew Richardson, Sr., lived on the north eighty east of the road until his death, May 1, 1911. He died testate, leaving nine children surviving him as his only heirs-at-law. His son Matthew, and son-in-law Ira Lander, were appointed and qualified as executors of the will. Appellant, William Richardson, a son of Matthew Richardson, Sr., lived on the south eighty east of the road at the time of his father's death and for more than twenty years prior thereto. This eighty was divided, the east forty acres in one field, the north half of the west forty in another field. The improvements were on the south half of the west forty, and, with lots, garden and truck patches, occupy twelve or fourteen acres. There was also a small orchard on the south half of the west forty. Appellant in his bill alleged that in 1890 he and his father-in-law, William Ross, were about to enter into a contract with George W. Funk to farm a considerable body of the latter's land, and that his father, Matthew Richardson, promised him if he would abandon that enterprise and continue to live on the eighty in question so long as the father should live, and pay a reasonable rent therefor, he would will the premises to appellant. The bill avers the agreement with Funk was terminated and he continued to live on and pay rent for the said eighty until his father's death, and that, with the father's consent, appellant made improvements thereon to the value of $2500. The bill sets out the will of the father, by which appellant was given a money legacy of $1000 and three other sons of the testator were given $500 each. The will charged the appellant with an advancement of $1000, three other sons and one daughter with $1500 each, and another daughter with $250. The will directed that within two years after the death of the testator all his land should be sold and the proceeds divided equally among his children.
The bill avers the probate of the will, the performance of the terms of the contract by appellant, the failure of performance by the testator, and the refusal of the appellant's brothers and sisters, beneficiaries under the will, to carry out the terms of the contract, and asks for its specific performance. Defendants to the bill, appellees here, who are the brothers and sisters of appellant and the executors of the will of Matthew Richardson, deceased, answered the bill, denying the making of the contract. They denied appellant was in possession of the land under the contract as alleged, and averred he was in possession as tenant. They denied the making of valuable improvements by appellant. The answer further averred such parol contract, if made, is void under the Statute of Frauds and Perjuries. Replication was filed and the cause referred to the master in chancery to take the testimony and report his conclusions of law and fact. The master reported recommending a decree as prayed in appellant's bill. The chancellor sustained exceptions to the master's report and dismissed the bill for want of equity.
Charles F. Ross, brother-in-law of appellant, was the only witness who testified to the making of the oral contract. He testified his father, William Ross, and appellant, had arranged to farm the George W. Funk land as partners, and that in September, 1890, in Atlanta, Illinois, he heard Matthew Richardson, Sr., say to witness' father and George Funk, and in the presence of appellant, that “Bill is going to leave me and come down to you men; I don't want him to come; I have come down to see if I can't get him to stay." Witness testified Funk there told appellant that he ought to stay where he was, since his father wanted him, and that he and Ross would let him off; that Matthew Richardson then said, "I have offered him this eighty acres of land if he will stay;" that appellant replied he knew he had but that he had nothing to show for it, whereupon Matthew Richardson told appellant if he would come back and stay on the place as long as he (Matthew) lived, and pay the same rent he had been paying, he would, when through with it, give it to appellant, and that Funk and Ross could prove what he said. Witness testified appellant then said he would stay on the place as long as he lived, and so told Funk and Ross. Funk and Ross are dead. The proof shows appellant did not leave the premises in question in 1890 but continued to live thereon until after his father's death.
In further proof of the making of the contract five or six witnesses of appellant testified to statements and conversations of Matthew Richardson at different times after the alleged making of the contract, in which to some he said the land in question was appellant's or that he was going to leave it to appellant, and to some he said he had agreed to give appellant the land if he would not leave him. One of the witnesses testified appellant on one occasion did not want to buy some fruit trees, and his father told him to buy the trees,—that it was his eighty anyhow. Another of the witnesses testified he asked Matthew Richardson if he was going to re-build a barn that burned, and he replied he was not; that appellant could build to suit himself; that he would get it anyhow, some day. Several witnesses testified to the different improvements made on the premises while appellant lived thereon, which they stated cost about $2500. As to the payment of rent by appellant, one witness testified he asked the father what rent appellant was paying, and the father replied he did not charge him as much as he would a stranger, and said he did not pay much. Two hired hands of appellant,-one who worked for him a year some ten or twelve years ago and for appellant's father some three or four years following the year he worked for appellant, and the other who worked for appellant the two years preceding the father's death,—testified the crops for those years were divided between appellant and his father.