The opinion
Mr. Justice Dunn, dissenting:
Mrs. Anna Ferguson, who had been for several years, and at the time of the hearing still was, a domestic in the employ of appellant, was the only witness to arty conversation between appellant and the deceased. She testified that about the time Kinsley bought the premises in question, at a time when no one was present but Mrs. Anderson, Kinsley and herself, Mr. Kinsley said to Mrs. Anderson: “Don’t worry; you don’t have to leave.” She said, “Why?” He said, “I have bought this place, and as. long as you take care of me in the future as you have in the past this home is yours.” Mrs. Anderson said, “I will.” On cross-examination she did not remember what rent Mrs. Anderson paid; that she gave him board for the rent. This was the bnly evidence tending in the slightest degree to prove a contract between appellant and Kinsley. This witness and others testified to statements made by Kinsley out of the presence of appellant, such as that the place belonged to Mrs. Anderson; that he had bought the place for Mrs. Anderson; that he was going to give her the place; that it would all be hers some day; that he intended to leave her that house; that the place was going to be Mrs. Anderson’s; that she had taken care of him and that was her home and always would be; that she was to take care of him until he died; that he had given her the house because'she was taking care of him and was good to him.
To authorize a court to enforce the specific performance of a parol contract to convey land the contract must be certain and definite in its terms, and these must be clearly established by evidence free from doubt or suspicion. (Worth v. Worth, 84 Ill. 442 ; Clark v. Clark, 122 id. 388.) The cases cited in the principal opinion are to the same effect and the rule is not questioned.
The allegation of the bill is, that Kinsley “proposed to complainant that if she would continue to reside upon said premises and furnish to the said John H. Kinsley his board and lodging and do his washing and give him such attention as he might reasonably need, that in consideration thereof such property should be hers from that date and she should have the title thereto upon his death, and that complainant at that time, in consideration of said John H. Kinsley investing her with the ownership of such property, agreed to furnish him his board and lodging and do his washing and mending, and give him such attention as he might need and supply him with a home.” The utmost extent of the proof is, that Kinsley said the home was hers as long as she took care of him in the future as she had in the past. There is no question but that this promise was completely performed by Kinsley and that the home was appellant’s as long as she took care of him. There is no evidence in this record that he ever contracted with her to give her the property. The evidence of his declarations to others indicates his intention but not his-contract to do so. Evidence of intention to give property to another, or of declarations that it had been given to another or belonged to another, does not prove a contract to convey and will not authorize a decree for specific performance. (Galloway v. Garland, 104 Ill. 275 ; Cassel v. Cassel, id. 361 ; Standard v. Standard, 223 id. 255; Worth v. Worth, supra.) The statements and declarations of the deceased do not tend .to prove any contract. The contract which the testimony of Anna Ferguson tends to prove is not that alleged in the bill, and the evidence shows it was fully performed.
There is no evidence whatever that appellant took possession of the property under any contract. When Kinsley bought it she was in possession as tenant of his vendor, paying $25 per month rent. There was no change in the character of her possession. It is probable that after Kinsley bought the place she paid no rent and that Kinsley paid no board, though there is no direct evidence on the question. Mrs. Ferguson’s statement that Mrs. Anderson gave Kinsley board for the rent is probably correct, though it is not certain that she had any knowledge about it. There is no evidence and no presumption that the rent was not a fair equivalent for the board and services that Kinsley received. The tax receipts were in Kinsley’s name, and there is no evidence and no presumption that they were not paid with his own money. No improvements were made on the property except very trifling temporary repairs, which might be expected to be done by a tenant.
The defendants in their answer relied upon the Statute of Frauds as a defense. A parol contract to convey land will not be enforced unless the evidence shows clearly that the vendee took possession of the land under the contract itself and in part performance of it, and not otherwise. (Wood v. Thornly, 58 Ill. 464 ; Padfield v. Padfield, 92 id. 198; Clark v. Clark, 122 id. 388; Shovers v. Warrick, 152 id. 355; Ransom v. Ransom, 233 id. 369; Standard v. Standard, supra.) All actsp relied on to defeat the Statute of Frauds must be done under the contract, for the purpose of performing it. If referable to any other cause they are not sufficient. Here appellant was already in possession as tenant. There is no evidence of payment of taxes by her, or of change of possession, or any single act not as readily referable to her tenancy as to the supposed contract.
In my judgment the evidence was insufficient to warrant a decree in favor of the complainant, and the bill was properly dismissed.
Vickers and Carter, JJ., also dissenting.